Lands' End, Inc. v. City of Dodgeville

2016 WI 64

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP179
COMPLETE TITLE: Lands' End, Inc.,
Plaintiff-Appellant,
v.
City of Dodgeville,
Defendant-Respondent.

ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED: July 12, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 16, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Iowa
JUDGE: Craig R. Day

JUSTICES:
CONCURRED: ZIEGLER, J. concurs (Opinion filed).
DISSENTED: PROSSER, J. and ROGGENSACK, C. J. dissent
(Opinion filed).
NOT PARTICIPATING: BRADLEY, R. G., J. did not participate.

ATTORNEYS:
For the plaintiff-appellant, there were briefs by Robert E.
Shumaker, Michele Perreault, and DeWitt Ross & Stevens S.C.,
Madison, and oral argument by Robert E. Shumaker.

For the defendant-respondent, there was a brief by Ted
Waskowski, Amie B. Trupke, and Stafford Rosenbaum LLP, and oral
argument by Amie B. Trupke.
 2016 WI 64
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP179
(L.C. No. 2009CV108)

STATE OF WISCONSIN : IN SUPREME COURT

Lands' End, Inc.,

Plaintiff-Appellant,
FILED
v.
JUL 12, 2016
City of Dodgeville,
Diane M. Fremgen
Defendant-Respondent. Clerk of Supreme Court

APPEAL from a judgment and order of the Circuit Court for

Iowa County, Craig R. Day, Judge. Affirmed

¶1 SHIRLEY S. ABRAHAMSON, J. This is an appeal from a

judgment and an order of the circuit court for Iowa County,

Craig R. Day, Judge. This judgment and order arose in response

to the 2013 directions of the court of appeals to the circuit

court to enter judgment in favor of Lands' End, Inc., the

plaintiff, and against the City of Dodgeville, the defendant,
 No. 2015AP179

for $724,292.68 "plus statutory interest and other interest or

costs to which Lands' End may be entitled."1

¶2 The issue before this court is what is the correct

rate of statutory interest to apply to Lands' End's judgment

against the City. More specifically, the issue is whether a

party is entitled to interest at the statutory rate of interest

in effect when an offer of settlement was made under Wis. Stat.

§ 807.01(4) (2009-10) or at the statutory rate of interest in

effect when the party recovers a judgment under the amended

version of the statute, Wis. Stat. § 807.01(4) (2013-14).2

¶3 We affirm the circuit court's judgment and order. The

circuit court awarded Lands' End interest at the statutory rate

of interest in effect when Lands' End recovered a judgment,

namely at a rate of "1 percent plus the prime rate" under the

amended version of Wis. Stat. § 807.01(4) (2013-14).

¶4 Lands' End appealed from the circuit court's order and

judgment, arguing that the circuit court's application of the

1
Lands' End, Inc. v. City of Dodgeville, No. 2010AP1185,
unpublished slip op., ¶30 (Wis. Ct. App. Sept. 12, 2013).
2
The amended version of Wis. Stat. § 807.01(4) (2013-14)
was adopted by 2011 Wis. Act 69. The phrase "party recovers a
judgment" in Wis. Stat. § 807.01(4) is not defined. The meaning
of the phrase is not pertinent to the issue before the court.
Important for the instant case is that the parties do not
dispute that Lands' End recovered a favorable judgment against
the City only after the enactment of the amended version of Wis.
Stat. § 807.01(4) (2013-14) lowered the statutory rate of
interest recoverable when a party makes an offer of settlement
and later recovers a judgment for greater than or equal to the
amount of the offer.

2
 No. 2015AP179

amended version of the statute, Wis. Stat. § 807.01(4) (2013-

14), was retroactive, disturbed Lands' End's vested rights in

the 12 percent interest rate in effect in Wis. Stat. § 807.01(4)

(2009-10) at the time it made its offer of settlement, and

violated Wis. Stat. § 990.04 (2013-14) and the Due Process and

Equal Protection clauses of the federal and state constitutions.

¶5 For the reasons set forth, we affirm the circuit

court's judgment and order awarding Lands' End interest at "1

percent plus the prime rate,"3 the rate in the amended version of

the statute, Wis. Stat. § 807.01(4) (2013-14), which was in

effect when Lands' End recovered its judgment against the City

of Dodgeville.4

¶6 Awarding interest at "1 percent plus the prime rate"

in the instant case is not a retroactive application of Wis.

Stat. § 807.01(4) (2013-14) and Lands' End did not have a vested

right in the 12 percent interest rate in effect in Wis. Stat.

§ 807.01(4) (2009-10) at the time Lands' End made its offer of

3
The prime rate is "the rate banks charge for short-term
unsecured loans to creditworthy customers." Matter of Oil Spill
by Amoco Cadiz Off Coast of France on Mar. 16, 1978, 954
F.2d 1279, 1332 (7th Cir. 1992). Because the prime rate
reflects market conditions, the prime rate provides a basis to
assess the time value of money withheld from a litigant for the
duration elapsed between the rejected offer of settlement and
eventual payment. See generally Michael S. Knoll, A Primer on
Prejudgment Interest, 75 Tex. L. Rev. 293 (1996).
4
We sometimes refer to Wis. Stat. § 807.01(4) (2013-14) as
the "amended version" of the statute, and refer to Wis. Stat.
§ 807.01(4) (2009-10) as the "prior version" of the statute or
the statute in effect on the date of the offer of settlement.

3
 No. 2015AP179

settlement. The circuit court's judgment and order do not

violate the Due Process clauses of the federal and state

constitutions or Wis. Stat. § 990.04 (2013-14). Moreover,

because the legislature had a rational basis for changing the

applicable interest rate from 12 percent to "1 percent plus the

prime rate" and did not create an irrational or arbitrary

classification, awarding interest under the amended version of

the statute, Wis. Stat. § 807.01(4) (2013-14), does not violate

the Equal Protection clauses of the federal and state

Constitutions.

¶7 Our decision in the instant case is contrary to the

opinion of the court of appeals in Johnson v. Cintas Corp. No.

2, 2015 WI App 14, 360 Wis. 2d 350, 860 N.W.2d 515.5 In Johnson,

the court of appeals held that applying the amended version of

the rate of interest to offers of settlement made prior to the

effective date of the amended version would disturb a vested

right to interest. Johnson is an officially published opinion

of the court of appeals. "Officially published opinions of the
court of appeals shall have statewide precedential effect."

Wis. Stat. § 752.41(2) (2013-14). We overrule the Johnson

decision.

5
This court granted review in Johnson v. Cintas Corp. No.
2, 2015 WI App 14, 360 Wis. 2d 350, 860 N.W.2d 515, to address
the same basic issues we address in the instant case. Before
Johnson was fully briefed, the parties voluntarily dismissed the
appeal with the permission of the court. See Wis. Stat.
§ (Rule) 809.18; see also Wis. S. Ct. Internal Operating
Procedures II.L.4 (reprinted in Vol. 6, Wis. Stats.).

4
 No. 2015AP179

¶8 Accordingly, we affirm the judgment and order of the

circuit court in the instant case.

I

¶9 The facts and procedural history of the instant case

are not in dispute for the purposes of this appeal.

¶10 The instant case is one of several cases representing

nearly a decade of litigation between Lands' End and the City

challenging the City's appraisal of the fair market value (and

resulting property tax assessments) of Lands' End's

headquarters. We do not recite the entire procedural history of

the litigation between Lands' End and the City. Instead, we

refer to pertinent aspects of the procedural history.

¶11 Lands' End is a Delaware corporation with

headquarters in the City of Dodgeville, Wisconsin, occupying six

parcels of land. For ease of discussion, we will refer to these

six parcels collectively as Lands' End's headquarters.

¶12 Prior to the instant case, in a case concerning the

amount of property taxes assessed for 2005 and 2006, the circuit
court for Iowa County, Edward Leineweber, Judge, ruled in Lands'

End's favor, rejecting the City of Dodgeville's valuation

methodology and concluding that the fair market value of Lands'

End's headquarters was $25,000,000.

¶13 In the instant case, Lands' End challenged the 2008

property tax assessment on its headquarters and sought a refund

of taxes. Lands' End argued that the City erroneously based its

2008 property tax assessment on the same valuation methodology
rejected in the 2005 and 2006 tax assessment case.
5
 No. 2015AP179

¶14 On July 1, 2009, Lands' End made an offer of

settlement in the instant case under Wis. Stat. § 807.01(4)

(2009-10) for $724,000. The City rejected Lands' End's offer.

¶15 Lands' End subsequently moved for summary judgment,

arguing that issue preclusion, together with the undisputed fact

that the value of Lands' End's headquarters did not change

between 2006 and 2008, entitled it to judgment as a matter of

law. On April 19, 2010, the circuit court for Iowa County,

William Dyke, Judge, denied Lands' End's motion for summary

judgment and affirmed the City's valuation of Lands' End's

headquarters.

¶16 Lands' End appealed the circuit court's denial of

summary judgment. The court of appeals reversed the circuit

court, holding that the circuit court erroneously denied Lands'

End's motion for summary judgment. The court of appeals

remanded the matter to the circuit court "with directions to

enter judgment in favor of Lands' End in the amount of

$724,292.68, plus statutory interest and any other interest or
costs to which Lands' End may be entitled."6

¶17 On remand, the parties disagreed regarding the

applicable rate of statutory interest to which Lands' End was

entitled. Lands' End moved for entry of judgment, arguing that

it was entitled to interest at the 12 percent rate specified in

Wis. Stat. § 807.01(4) (2009-10); this version of § 807.01(4)

6
Lands' End, Inc. v. City of Dodgeville, No. 2010AP1185,
unpublished slip op., ¶30 (Wis. Ct. App. Sept. 12, 2013).

6
 No. 2015AP179

was in effect when Lands' End made its offer of settlement. In

contrast, the City argued that Lands' End was entitled to

interest at "1 percent plus the prime rate" as specified in the

amended version of Wis. Stat. § 807.01(4) (2013-14); this

version of § 807.01(4) was in effect when Lands' End recovered a

judgment.

¶18 The circuit court agreed with the City, awarding

interest at "1 percent plus the prime rate" as specified in the

amended version of Wis. Stat. § 807.01(4) (2013-14). The

circuit court concluded that "1 percent plus the prime rate"

was, at the relevant time, 4.25 percent, a rate substantially

less than the 12 percent interest provided for in Wis. Stat.

§ 807.01(4) (2009-10). Lands' End appealed. We granted the

City's petition to bypass the court of appeals. See Wis. Stat.

§ (Rule) 809.60.

II

¶19 The instant case involves the interpretation of

statutes and constitutional provisions and their application to
undisputed facts. These are questions of law that we decide

independently of the circuit court and the court of appeals

while benefitting from their analyses. Milwaukee Journal

Sentinel v. Wis. Dep't of Admin., 2009 WI 79, ¶14, 319

Wis. 2d 439, 768 N.W.2d 700.

¶20 Lands' End challenges the constitutionality of Wis.

Stat. § 807.01(4) (2013-14) as applied to it. Lands' End has

the burden of proving beyond a reasonable doubt that Wis. Stat.

7
 No. 2015AP179

§ 807.01(4) is unconstitutional as applied to it. See Soc'y

Ins. v. LIRC, 2010 WI 68, ¶27, 326 Wis. 2d 444, 786 N.W.2d 385.

III

¶21 We first examine the texts of the statutes governing

offers of settlement and the rate of interest to which a party

is entitled if the party making the offer of settlement

subsequently recovers a judgment for greater than or equal to

the amount of the offer. We then turn to the court of appeals'

decision in Johnson before addressing Lands' End's five legal

arguments in support of its position.

¶22 Wisconsin Stat. § 807.01, entitled "Settlement

offers," provides that if a party makes an offer of settlement

and subsequently recovers a judgment for greater than or equal

to the amount of its offer, the offeror is "entitled" to

interest on the amount recovered running from the date of its

offer. See Wis. Stat. § 807.01(4) (2009-10) and Wis. Stat.

§ 807.01(4) (2013-14) for two versions of this statute.

¶23 The two versions of the statutes set forth two
different rates of statutory interest. The dispute is about

which version of the statute (and thus which rate of statutory

interest) applies in the instant case.

¶24 Prior to 2011, Wis. Stat. § 807.01(4) (2009-10)

provided that the party making an offer of settlement may be

entitled to interest at the annual rate of 12 percent on the

amount recovered from the date of the offer of settlement until

the amount is paid.

8
 No. 2015AP179

¶25 Section 807.01(4) (2009-10) stated in relevant part as

follows (with emphasis added):

If there is an offer of settlement by a party under
this section which is not accepted and the party
recovers a judgment which is greater than or equal to
the amount specified in the offer of settlement, the
party is entitled to interest at the annual rate of
12% on the amount recovered from the date of the offer
of settlement until the amount is paid. . . .
¶26 In 2011 the legislature adopted 2011 Wis. Act 69,

amending the statute. Act 69 amended Wis. Stat. § 807.01(4)

(2009-10) to provide that the party making an offer of

settlement is entitled to interest at an annual rate equal to 1

percent plus the applicable prime rate in effect on January 1 of

the year in which the judgment is entered if the judgment is

entered on or before June 30 of that year, or in effect on July

1 of the year in which the judgment is entered if the judgment

is entered after June 30 of that year.

¶27 Section 807.01(4) (2013-14) states in relevant part as

follows (with emphasis added):

If there is an offer of settlement by a party under
this section which is not accepted and the party
recovers a judgment which is greater than or equal to
the amount specified in the offer of settlement, the
party is entitled to interest at an annual rate equal
to 1 percent plus the prime rate in effect on January
1 of the year in which the judgment is entered if the
judgment is entered on or before June 30 of that year
or in effect on July 1 of the year in which the
judgment is entered if the judgment is entered after
June 30 of that year, as reported by the federal
reserve board in federal reserve statistical release
H. 15, on the amount recovered from the date of the
offer of settlement until the amount is paid. . . .

9
 No. 2015AP179

¶28 Both versions of Wis. Stat. § 807.01(4) impose the

same three basic requirements in order for a party who makes an

offer of settlement to be entitled to interest on a judgment

recovered: (1) an (unaccepted) offer of settlement; (2) recovery

of a judgment; and (3) a judgment for greater than or equal to

the amount of the offer. "[I]nterest may not be imposed unless

an actual judgement is entered in a case." DeWitt Ross &

Stevens v. Galaxy Gaming & Racing Ltd. P'ship, 2004 WI 92, ¶33,

273 Wis. 2d 577, 682 N.W.2d 839 (citing Osman v. Phipps, 2002 WI

App 170, ¶¶8, 12, 256 Wis. 2d 589, 649 N.W.2d 701) (declining to

award interest when no judgment was recovered)); see also Tomsen

v. Secura Ins., 2003 WI App 187, ¶10, 266 Wis. 2d 491, 668

N.W.2d 794 (awarding interest because a judgment was recovered

based on a stipulation).

¶29 In the instant case, it is undisputed that Lands' End

meets these three requirements and is therefore entitled to

interest on its judgment. The question remains, however, what

statutory rate of interest applies in the instant case.
¶30 To support its position that the applicable rate of

interest is set forth in the earlier version of Wis. Stat.

§ 807.01(4) (2009-10), Lands End relies on the court of appeals'

decision in Johnson v. Cintas Corp. No. 2, 2015 WI App 14, 360

Wis. 2d 350, 860 N.W.2d 515.

¶31 Johnson decided the same issue that is presented in

the instant case. The Johnson decision did not, however,

address all the legal arguments presented in the instant case.

10
 No. 2015AP179

¶32 In Johnson, the plaintiff, Johnson, made an offer of

settlement in 2008.7 After the offer of settlement was made but

before Johnson recovered a judgment, the legislature enacted

2011 Wis. Act 69.8 In 2013, after 2011 Wis. Act 69 took effect,

Johnson recovered more than the amount of his offer of

settlement.9 Johnson sought interest on the judgment from the

time the offer of settlement at 12 percent annually from the

date of the offer of settlement pursuant to Wis. Stat.

§ 807.01(4) (2007-08).10

¶33 The circuit court in Johnson applied the interest rate

in effect when Johnson recovered his judgment——"1 percent plus

the prime rate"——rather than the 12 percent rate in effect at

the time of Johnson's offer of settlement.11

¶34 The court of appeals reversed the circuit court in

Johnson, reasoning that awarding interest at "1 percent plus the

prime rate" when a party made an offer of settlement under the

prior 12 percent interest rate would be unconstitutional.12 The

court of appeals concluded that the interest rate to be applied

7
Johnson, 360 Wis. 2d 350, ¶5.
8
Johnson, 360 Wis. 2d 350, ¶17.
9
Johnson, 360 Wis. 2d 350, ¶10.
10
Johnson, 360 Wis. 2d 350, ¶2.
11
Johnson, 360 Wis. 2d 350, ¶11.
12
Johnson, 360 Wis. 2d 350, ¶29.

11
 No. 2015AP179

is the rate in effect on the date of the offer of settlement. 13

The court of appeals stated that applying a statutory interest

rate enacted after the offer of settlement adversely affects the

expectations of both parties and "would substantially impair

Johnson's vested right to interest on the judgment at twelve

percent."14

¶35 For the reasons set forth, we disagree with the court

of appeals' decision in Johnson and are not persuaded by Lands'

End's legal arguments.

¶36 Lands' End's arguments are as follows:

(1) Applying the amended version of Wis. Stat. § 807.01(4)

(2013-14), which fixes the statutory rate of interest

at "1 percent plus the prime rate," to Lands' End's

judgment in the instant case is a retroactive

application of the statute;

13
Johnson, 360 Wis. 2d 350, ¶29.
14
See Johnson, 360 Wis. 2d 350, ¶¶25-29.

We note, however, that the court of appeals in Johnson
misstated the balancing test, stating that "[i]f retroactive
legislation causes 'substantial impairment of a vested right,'
it is unconstitutional unless justified by a significant and
legitimate public interest." See Johnson, 360 Wis. 2d 350, ¶15
(quoting Matthies v. Positive Safety Mfg. Co., 2001 WI 82, ¶31,
244 Wis. 2d 720, 628 N.W.2d 842). In Society Insurance v. Labor
& Industry Review Commission, 2010 WI 68, ¶30 n.12, 326
Wis. 2d 444, 786 N.W.2d 385, we held that "requiring a showing
of a 'significant and legitimate public purpose' in the course
of a due process challenge improperly subjects the retroactive
legislation to a heightened level of scrutiny. Retroactive
legislation must be 'justified by a rational legislative
purpose.'"

12
 No. 2015AP179

(2) Lands' End had a vested right in the 12 percent

statutory interest rate in the version of Wis. Stat.

§ 807.01(4) (2009-10) in effect when Lands' End made

its offer of settlement;

(3) Applying Wis. Stat. § 807.01(4) (2013-14), which

provides for interest at "1 percent plus the prime

rate," to Lands' End's judgment in the instant case

violates the Due Process clauses of the federal and

state constitutions;

(4) Applying Wis. Stat. § 807.01(4) (2013-14), which

provides for interest at "1 percent plus the prime

rate," to Lands' End's judgment in the instant case

violates Wis. Stat. § 990.04; and

(5) Applying Wis. Stat. § 807.01(4) (2013-14), which

provides for interest at "1 percent plus the prime

rate," to Lands' End's judgment in the instant case

violates the Equal Protection clauses of the federal

and state constitutions.
¶37 Although we address each of these legal arguments

separately, they are interrelated, not isolated. Lands' End

relies on the same or similar approaches in each argument to

buttress its position.

(1)

¶38 Applying the "1 percent plus the prime rate" language

in effect when Lands' End recovered its judgment was not a

retroactive application of the amended version of Wis. Stat.
§ 807.01(4) (2013-14) to Lands' End's judgment, because Lands'
13
 No. 2015AP179

End had not recovered a judgment before the amended version of

the statute took effect.

¶39 Deciding when a statute applies retroactively is not

always easy; it is not a mechanical task. "The conclusion that

a particular rule operates 'retroactively' comes at the end of a

process of judgment concerning the nature and extent of the

change in the law and the degree of connection between the

operation of the new rule and a relevant past event." Landgraf

v. USI Film Prods., 511 U.S. 244, 265 (1994).

¶40 To put into perspective the issue of whether the

amended version of Wis. Stat. § 807.01(4) (2013-14) is

retroactive legislation, we state and apply principles of the

law of retroactivity.

¶41 First, the party challenging legislation as

unconstitutionally retroactive "has the burden of proving the

statute, as applied to it, is unconstitutional beyond a

reasonable doubt." Soc'y Ins. v. LIRC, 2010 WI 68, ¶27, 326

Wis. 2d 444, 786 N.W.2d 385. The burden is thus on Lands' End
in the instant case.

¶42 Second, "[t]he general rule in Wisconsin is that

legislation is presumptively prospective unless the statutory

language clearly reveals either expressly or by necessary

implication an intent that the statute apply retroactively."

Betthauser v. Med. Protective Co., 172 Wis. 2d 141, 147, 493

14
 No. 2015AP179

N.W.2d 40 (1992) (quoting U.S. Fire Ins. Co. v. E.D. Wesley Co.,

105 Wis. 2d 305, 319, 313 N.W.2d 833 (1982)).15

¶43 The amended version of Wis. Stat. § 807.01(4) (2013-

14) does not clearly reveal a legislative intent that the

statute apply retroactively. See 2011 Wis. Act 69 (adopting

Wis. Stat. § 807.01(4) (2013-14)).

¶44 In contrast, when the 12 percent rate in Wis. Stat.

§ 807.01(4) (2009-10) first became effective in 1980, the

legislature clearly specified that the statute did not apply

retroactively: "The treatment or creation of sections

807.01(4) . . . of the statutes apply only to actions commenced

on or after the effective date of this Act." § 5, ch. 271, Laws

of 1979.

¶45 When the legislature adopted 2011 Wis. Act 69 reducing

the rate of interest to "1 percent plus the prime rate," the

legislature did not use similar limiting language. Rather, the

15
"If, however, a statute is procedural or remedial, rather
than substantive, the statute is generally given retroactive
application unless retroactive application would impair
contracts or disturb vested rights." Betthauser v. Med.
Protective Co., 172 Wis. 2d 141, 147, 493 N.W.2d 40 (1992)
(citing Steffen v. Little, 2 Wis. 2d 350, 357-58, 86 N.W.2d 622
(1957)). Because we conclude that awarding interest at the "1
percent plus the prime rate" in effect when Lands' End recovered
its judgment is not a retroactive application of Wis. Stat.
§ 807.01(4) and does not impair any vested rights, we need not
decide whether Wis. Stat. § 807.01(4) is substantive or
procedural. Even if interest under Wis. Stat. § 807.01(4) is,
as Lands' End argues, substantive rather than procedural, the
statute is not being applied retroactively and does not disturb
vested rights.

15
 No. 2015AP179

legislature stated that 2011 Wis. Act 69 "first applies to an

execution on a judgment entered on the effective date of this

subsection." 2011 Wis. Act 69, § 4. The parties do not dispute

that Lands' End did not "execut[e] on judgment" prior to the

effective date of 2011 Wis. Act 69.

¶46 We conclude that the amended version of Wis. Stat.

§ 807.01(4) (2013-14) does not clearly reveal a legislative

intent that the statute apply retroactively. Further analysis

is required to determine whether Wis. Stat. § 807.01(4) (2013-

14) applies retroactively in the instant case.

¶47 Third, another principle guiding the determination of

retroactivity in the present case is that a statute does not

operate retroactively simply because it is applied "in a case

arising from conduct antedating the statute's enactment, or

upsets expectations based on prior law." State v. Chrysler

Outboard Corp., 219 Wis. 2d 130, 172, 580 N.W.2d 203 (1998)

(quoting Landgraf, 511 U.S. at 269-70).16

16
See also Republic Nat'l Bank v. United States, 506 U.S.
80, 100 (1992) (Thomas, J., concurring in part and concurring in
judgment) ("[N]ot every application of a new statute to a
pending case will produce a 'retroactive effect.'"); Cox v.
Hart, 260 U.S. 427, 435 (1922) ("A statute is not made
retroactive merely because it draws upon antecedent facts for
its operation.") (citations omitted); 2 Norman J. Singer & J.D.
Shambie Singer, Statutes and Statutory Construction § 41:1, at
385 (7th ed. 2009) ("[A] statute is not rendered retroactive
merely because the facts upon which its subsequent action
depends are drawn from a time antecedent to its effective
date.")

16
 No. 2015AP179

¶48 Thus the fact that the amended version of Wis. Stat.

§ 807.01(4) (2013-14) applies to Lands' End's pending instant

case, standing alone, does not render the statute retroactive.

¶49 Fourth, a statute operates retroactively if, among

other things, it "takes away or impairs vested rights . . . ."

Chrysler Outboard, 219 Wis. 2d at 172 (quoting In re Estate of

Bilsie, 100 Wis. 2d 342, 357, 302 N.W.2d 508 (Ct. App. 1981)).

But "[t]he mere expectation of a future benefit or contingent

interest does not create a vested right." 2 Norman J. Singer &

J.D. Shambie Singer, Statutes and Statutory Construction § 41:6,

at 456-57 (7th ed. 2009) (emphasis added).17

¶50 Thus, when the existence of a right is contingent on

an uncertain future event (here, recovering a judgment), and

that event has not occurred prior to the enactment of a statute

altering the legal effect of that uncertain future event, the

party challenging the application of the revised statute has no

17
Cases in other jurisdictions agree that a party does not
have a vested right when the existence of the right asserted is
contingent on some uncertain future event. See, e.g., U.S. Cold
Storage v. City of La Vista, 831 N.W.2d 23, 33 (Neb. 2013) ("To
be considered a vested right, the right must be 'fixed, settled,
absolute, and not contingent upon anything.'") (quoted source
omitted) (emphasis added); Rehor v. Case W. Reserve Univ., 331
N.E.2d 416, 420 (Ohio 1975) ("'[A] vested right is a right
fixed, settled, absolute, and not contingent upon anything.'")
(emphasis added); Wylie v. Grand Rapids City Comm'n, 292 N.W.
668, 674 (Mich. 1940) ("'A vested right . . . is a right so
fixed, that it is not dependent on any act, contingency, or
decision to make it more secure.") (emphasis added).

17
 No. 2015AP179

vested right in the application of the prior law, and the new

law is not being retroactively applied.

¶51 The explanation of this point in Winiarski v. Miicke,

186 Wis. 2d 409, 521 N.W.2d 162 (Ct. App. 1994), is instructive.

¶52 In Winiarski, a child was adopted by his

grandparents.18 At the time of the adoption, an adopted child

could inherit from his or her birth parent through intestate

succession.19 After the adoption but before the child's

biological father died, a new statute was enacted declaring

(with exceptions not relevant here) that an adopted child could

not inherit from his or her birth parent through intestate

succession.20 Subsequently, the child's biological father died

intestate, and the child sought to take from his biological

father's estate, arguing that the new statute was prospective

only and did not apply to his situation.21

¶53 The court of appeals held in Winiarski against the

child as follows:

[T]he right to take by intestate succession does not
exist until the decedent dies intestate. Thus,
intestate succession is governed by statutes 'in force
at the time of the death of the intestate.'
Accordingly, a statute enacted after an adoption that
alters the effect of the adoption on the right to

18
In the Matter of the Estate of Winiarski v. Miicke,
186 Wis. 2d 409, 412, 521 N.W.2d 162 (Ct. App. 1994).
19
See Winiarski, 186 Wis. 2d at 411.
20
See Winiarski, 186 Wis. 2d at 411.
21
Winiarski, 186 Wis. 2d at 411-12.

18
 No. 2015AP179

inherit from a[n] intestate decedent is prospective,
not retroactive, as long as the statute was effective
before the intestate's death.22
¶54 In the instant case, like Winiarski, Lands' End's

right at the time the amended version of the statute took effect

was contingent on an uncertain future event, namely Lands' End's

recovery of a judgment for greater than or equal to the amount

of its offer of settlement. Thus, as in Winiarski, the amended

version of the statute is not retroactive, because Lands' End's

right under the amended version of the statute at the effective
date of the statute was inchoate, not perfected, not ripened,

nor accrued. Lands' End had not yet recovered a judgment.

¶55 Fifth, although not dispositive, the presumption

against retroactive application of a statute is premised on

considerations of fairness.23 Persons should have an opportunity

22
Winiarski, 186 Wis. 2d at 412-13 (internal citations
omitted) (emphasis in original).
23
See Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994)
("As Justice Scalia has demonstrated, the presumption against
retroactive legislation is deeply rooted in our jurisprudence,
and embodies a legal doctrine centuries older than our Republic.
Elementary considerations of fairness dictate that individuals
should have an opportunity to know what the law is and to
conform their conduct accordingly; settled expectations should
not be lightly disrupted. For that reason, the 'principle that
the legal effect of conduct should ordinarily be assessed under
the law that existed when the conduct took place has timeless
and universal appeal.'") (quoting Kaiser Aluminum & Chem. Corp.
v. Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring)).

See also 2 Singer, supra note 16, § 41:6, at 457 ("Judicial
attempts to explain whether [the] protection against retroactive
interference [with vested rights] will be extended reveal that
elementary considerations of fairness and justice govern.").

19
 No. 2015AP179

to know in advance what the law is and to conform their conduct

accordingly.24 Furthermore, settled expectations should not be

lightly disrupted.25

¶56 Although Lands' End argues that it had a settled

expectation of 12 percent interest based on its offer of

judgment, which antedated the enactment of Wis. Stat.

§ 807.01(4) (2013-14), that expectation does not necessarily

render Wis. Stat. § 807.01(4) (2013-14) retroactive or make its

application to Lands' End in the instant case unfair. "If every

time a man relied on existing law in arranging his affairs, he

were made secure against any change in legal rules, the whole

body of our law would be ossified forever." Lon L. Fuller, The

Morality of Law 60 (1964).

¶57 Moreover, it is questionable whether an expectation

based on the prior law was reasonable. To obtain interest at

the former 12 percent statutory interest rate, Lands' End had to

recover a judgment for as much or more than the amount of its

offer of settlement. The statute and the case law explicitly
say so.26 Lands' End had not recovered a judgment when the

24
See Landgraf, 511 U.S. at 265.
25
See Landgraf, 511 U.S. at 265.
26
See DeWitt Ross & Stevens v. Galaxy Gaming & Racing Ltd.
P'ship, 2004 WI 92, ¶33, 273 Wis. 2d 577, 682 N.W.2d 839 (citing
Osman v. Phipps, 2002 WI App 170, ¶¶8, 12, 256 Wis. 2d 589, 649
N.W.2d 701) ("[I]nterest may not be imposed unless an actual
judgment is entered in a case."); see also Tomsen v. Secura
Ins., 2003 WI App 187, ¶10, 266 Wis. 2d 491, 668 N.W.2d 794
(interest awarded because judgment was recovered based on a
stipulation).

20
 No. 2015AP179

former 12 percent statutory interest rate was repealed, and the

possibility remained that it would not recover a judgment at all

or would recover a judgment for less than the offer of

settlement. Thus, Lands' End's claim that it expected to be

governed by the former statute rests on shaky ground.

¶58 Furthermore, it is not an unreasonable burden on

Lands' End or unjust or impractical to apply the amended version

of the statutory rate of interest to Lands' End's judgment in

the instant case. When the 12 percent interest rate became

effective in 1980, 12 percent was lower than the predominant

market interest rate.27 In 2009, however, when Lands' End made

its offer of settlement, market interest rates were 3.25

percent——considerably lower than when the 12 percent statutory

interest rate in Wis. Stat. § 807.01(4) (2009-10) went into

effect in 1980.

¶59 The interest rate in Wis. Stat. § 807.01(4) is

apparently designed to place parties in roughly the same

position they would have been had the amount of the judgment

27
See Bd. of Governors of the Fed. Reserve Sys., Bank Prime
Loan Rate Changes: Historical Dates of Changes and Rates (Dec.
21, 2014, 12:41 PM),
https://research.stlouisfed.org/fred2/data/PRIME.txt (stating
prime rates in 1980 fluctuated between 11 percent and 21
percent).

21
 No. 2015AP179

recovered been paid immediately.28 When we consider the market

interest rate during the entire period of the instant case, the

interest rate in the amended version of the statute compensated

Lands' End for approximately the same amount had the amount of

the judgment recovered been paid immediately.

¶60 By tying the interest rate in Wis. Stat. § 807.01(4)

(2013-14) to market rates, the legislature ensured that a party

like Lands' End that recovers a judgment for as much or more

than the amount of an offer of settlement after the effective

date of the statute is fairly and reasonably compensated for

being unable, during the pendency of the litigation, to use the

money to which it is entitled.

¶61 Elsewhere, Lands' End argues that it would be unfair

to award it interest at "1 percent plus the prime rate" because,

but for the circuit court's erroneous denial of summary

judgment, Lands' End would have recovered a judgment prior to

the effective date of 2011 Wis. Act 69, and thus would have been

entitled to interest at 12 percent rather than "1 percent plus
the prime rate."

¶62 We disagree with Lands' End when it argues that it is

unfair to award interest at the lower interest rate when its

28
See Michael S. Knoll, A Primer on Prejudgment Interest,
75 Tex. L. Rev. 293, 296 (1996) ("The payment of prejudgment
interest . . . ensures that the plaintiff receives full
compensation for its losses and that the defendant pays the full
pe[n]alty, thereby putting both parties in the same position
that they would have been in if the judgment had been paid
immediately.").

22
 No. 2015AP179

failure to recover a judgment before the amended statute was

enacted is due to the circuit court's error.

¶63 Although in the instant case there is arguably an

identifiable point when Lands' End should have recovered its

judgment (April 19, 2010, the date the circuit court denied

summary judgment), other cases may present more complicated

factual situations in which it would be difficult, if not

impossible, to identify the point at which an offeror of

settlement "should" have recovered a judgment. Moreover, the

text of Wis. Stat. § 807.01(4) ties the applicable interest rate

to the "recover[y of] a judgment," not when a judgment "should

have been" recovered.

¶64 In sum, applying the amended version of the statutory

rate of interest to Lands' End's judgment in the instant case is

not retroactive, unfair, unreasonable, or unduly burdensome to

Lands' End. Rather, the amended version of the statute fosters

legitimate legislative purposes.29

¶65 Sixth, Lands' End argues that the amended version of
Wis. Stat. § 807.01(4) (2013-14) applies retroactively because

it "t[ook] away or impair[ed] vested rights" Lands' End acquired

29
See also infra, ¶¶106-108 (discussing the purposes of
Wis. Stat. § 807.01(4) (2013-14)).

23
 No. 2015AP179

under Wis. Stat. § 807.01(4) (2009-10) when it made its offer of

settlement.30

¶66 We turn now to a discussion of the concept of a

"vested right," a concept related to retroactivity and to Lands'

End's other arguments.

(2)

¶67 Lands' End did not have a vested right in the 12

percent rate of interest in effect when it made its offer of

settlement.

¶68 Defining a "vested right" is somewhat difficult, and

some definitions are opaque, circular, and conclusory. One such

definition of a vested right is that a vested right is a

presently legally enforceable right, not dependent on uncertain

future events. Statutes and Statutory Construction (also known

as Sutherland Statutory Construction), for example, describes

several definitions of "vested right," including "an immediate

right of present enjoyment or a present fixed right of future

enjoyment." 2 Norman J. Singer & J.D. Shambie Singer, Statutes

30
A law is viewed as retroactive if it "'takes away or
impairs vested rights acquired under existing laws, or creates a
new obligation, imposes a new duty, or attaches a new
disability, in respect to transactions or considerations already
past . . . .'" State v. Chrysler Outboard Corp., 219
Wis. 2d 130, 172, 580 N.W.2d 203 (1998) (quoting In re Estate of
Bilsie, 100 Wis. 2d 342, 357, 302 N.W.2d 508 (Ct. App. 1981)).

Lands' End does not argue that the application of the
amended version of Wis. Stat. § 807.01(4) to Lands' End was
retroactive because it "creates a new obligation, imposes a new
duty, or attaches a new disability, in respect to transactions
or considerations already past."

24
 No. 2015AP179

and Statutory Construction § 41:6, at 456 (7th ed. 2009)

(footnote omitted).

¶69 Our case law describes vested rights similarly: "[t]he

concept of vested rights is conclusory——a right is vested when

it has been so far perfected that it cannot be taken away by

statute." Soc'y Ins. v. LIRC, 2010 WI 68, ¶29, 326 Wis. 2d 444,

786 N.W.2d 385 (quoting Neiman v. Am. Nat'l Prop. & Cas. Co.,

2000 WI 83, ¶14, 236 Wis. 2d 411, 613 N.W.2d 160); see also In

re Paternity of John R.B., 2005 WI 6, ¶20, 277 Wis. 2d 378, 690

N.W.2d 849; Black's Law Dictionary 1520 (10th ed. 2014)

(defining "vested right" as, among other things, "[a] right that

so completely and definitely belongs to a person that it cannot

be impaired or taken away without the person's consent.").

¶70 A similar definition of a "vested right" has been

formulated by the court in another context. The court has

stated that "[a]n existing right of action which has accrued

under the rules of the common law or in accordance with its

principles is a vested property right." Matthies v. Positive
Safety Mfg. Co., 2001 WI 82, ¶22, 244 Wis. 2d 720, 628

N.W.2d 842 (quoting Hunter v. Sch. Dist. Gale-Ettrick-

Trempealeau, 97 Wis. 2d 435, 445, 293 N.W.2d 515 (1980)).

¶71 Lands' End argues in effect that it has a vested right

to the 12 percent statutory rate of interest in Wis. Stat.

§ 807.01(4) because its remedy under § 807.01(4) (2009-10) was

"perfected" or "accrued" before Wis. Stat. § 807.01(4) (2013-14)

took effect and is, therefore, a vested property right.

25
 No. 2015AP179

¶72 We disagree with Lands' End. Under both versions of

Wis. Stat. § 807.01(4), Lands' End did not acquire a legally

enforceable right to recover interest until it recovered a

judgment.31 Unlike, for example, a right of action for

negligence, which accrues (and is legally enforceable) on the

date of the accident and injury, see Matthies, 244 Wis. 2d at

738-39, Lands' End's right to recover interest under Wis. Stat.

§ 807.01(4) accrues (and becomes legally enforceable) only after

the recovery of a judgment. Changing the interest rate in Wis.

Stat. § 807.01(4) simply alters the legal consequence of events

not yet completed. Before Lands' End recovered a judgment, its

right to interest was inchoate.

¶73 The principle that vesting of a right does not occur

until the right is no longer contingent is illustrated in

Trinity Petroleum, Inc. v. Scott Oil Co., Inc., 2007 WI 88, 302

Wis. 2d 299, 735 N.W.2d 1.

¶74 In Trinity, we addressed, among other things, whether

a party defending against an allegedly frivolous claim prior to
the repeal of Wis. Stat. § 814.025 (2003-04), which authorized

the recovery of costs and reasonable attorneys fees incurred in

31
See DeWitt Ross & Stevens v. Galaxy Gaming & Racing Ltd.
P'ship, 2004 WI 92, ¶33, 273 Wis. 2d 577, 682 N.W.2d 839 (citing
Osman v. Phipps, 2002 WI App 170, ¶¶8, 12, 256 Wis. 2d 589, 649
N.W.2d 701) ("[I]nterest may not be imposed unless an actual
judgment is entered in a case."); see also Tomsen v. Secura
Ins., 2003 WI App 187, ¶10, 266 Wis. 2d 491, 668 N.W.2d 794
(interest awarded when judgment was recovered based on a
stipulation).

26
 No. 2015AP179

defending against a frivolous claim brought before the repeal of

§ 814.025, had a "vested right."32

¶75 The Trinity court concluded that "[t]he legislature

did not create a substantive, vested right to costs and

reasonable attorneys fees in former Wis. Stat. § 814.025 (2003-

04)."33 Rather, the court explained that "[o]nly upon a finding

by a circuit court that an action was frivolous under § 814.025

(when that statute was still in effect) would an aggrieved party

obtain a vested right to recover reasonable expenses under the

statute."34 Because the circuit court "made no such finding in

[Trinity] before the repeal of § 814.025," the aggrieved party

had no vested right under the repealed statute.35

32
Trinity Petroleum, Inc. v. Scott Oil Co., Inc., 2007 WI
88, ¶48, 302 Wis. 2d 299, 735 N.W.2d 1.
33
Trinity, 302 Wis. 2d 299, ¶48.
34
Trinity, 302 Wis. 2d 299, ¶48 (emphasis added).
35
Trinity, 302 Wis. 2d 299, ¶48.

Because the Trinity court concluded that the adoption of a
new rule for sanctions and the repeal of Wis. Stat. § 814.025
were procedural rules generally applied retroactively, the
Trinity court remanded the cause to the circuit court to
determine whether applying the new rule governing frivolous
actions that case commenced under the former rule governing
frivolous actions "impose[d] an unreasonable burden on the party
charged with complying with the new rule's requirements."
Trinity, 302 Wis. 2d 299, ¶7.

Because we conclude that Wis. Stat. § 807.01(4) (2013-14)
does not take away or impair vested rights and is not an undue
burden in the instant case, no remand is needed to determine
whether application of the amended version of the statute
imposes an unreasonable burden.

27
 No. 2015AP179

¶76 As with the finding of frivolousness in Trinity, a

party has no right to recover interest from the date of an offer

of settlement under either version of Wis. Stat. § 807.01(4)

unless the party recovers a judgment for as much or more than

the amount of the offer.

¶77 In the instant case, Lands' End did not recover a

judgment until after Wis. Stat. § 807.01(4) (2013-14) took

effect. Lands' End thus stands in a position similar to that of

the defendant in Trinity. Lands' End's entitlement to interest

under Wis. Stat. § 807.01(4) (2009-10) was contingent on a

subsequent determination by a court, namely that Lands' End was

entitled to a judgment for greater than or equal to the amount

of its offer of settlement.

¶78 Also like the defendant in Trinity, Lands' End did not

obtain such a determination while Wis. Stat. § 807.01(4) (2009-

10) was in effect. Under these circumstances, Lands' End did

not have a vested right to recover interest under Wis. Stat.

§ 807.01(4) (2009-10). See 2 Norman J. Singer & J.D. Shambie
Singer, Statutes and Statutory Construction § 41:6, at 456-57

(7th ed. 2009) ("The mere expectation of a future benefit or

contingent interest does not create a vested right.").

¶79 Accordingly, applying the "1 percent plus the prime

rate" in the amended version of Wis. Stat. § 807.01(4) did not

28
 No. 2015AP179

"take[] away or impair[] vested rights acquired [by Lands' End]

under existing laws . . . ."36

(3)

¶80 Lands' End's claim under the Due Process clauses of

the federal and state constitutions fails.

¶81 Lands' End's Due Process claim rests on Wis. Stat.

§ 807.01(4) (2013-14) having "a retroactive effect," and Lands'

End's having "a vested right" under Wis. Stat. § 807.01(4)

(2009-10). See Soc'y Ins., 326 Wis. 2d 444, ¶29.

¶82 As we explained previously, awarding interest to

Lands' End under Wis. Stat. § 807.01(4) (2013-14) does not have

a retroactive effect. Furthermore, Lands' End did not acquire a

vested right to the statutory interest rate in Wis. Stat.

§ 807.01(4) (2009-10) while Wis. Stat. § 807.01(4) (2009-10) was

in effect because Lands' End did not recover a judgment until

after Wis. Stat. § 807.01(4) (2013-14) took effect.

Accordingly, awarding interest to Lands' End at "1 percent plus

the prime rate" under Wis. Stat. § 807.01(4) (2013-14) does not

36
See Chrysler Outboard, 219 Wis. 2d at 172 (quoting
Bilsie, 100 Wis. 2d at 357).

29
 No. 2015AP179

take away or impair any vested rights.37 We therefore conclude

that applying the amended statute to Lands' End in the instant

case does not violate due process.

(4)

¶83 Awarding interest to Lands' End under the amended

version of Wis. Stat. § 807.01(4) (2013-14) does not violate

Wis. Stat. § 990.04 (2013-14).

¶84 Wisconsin Stat. § 990.04 (2013-14), entitled "Actions

pending not defeated by repeal of statute," provides (with

emphasis added):

The repeal of a statute hereafter shall not remit,
defeat or impair any civil or criminal liability for
offenses committed, penalties or forfeitures incurred
or rights of action accrued under such statute before
the repeal thereof, whether or not in course of
prosecution or action at the time of such repeal; but
all such offenses, penalties, forfeitures and rights
of action created by or founded on such statute,
liability wherefore shall have been incurred before
the time of such repeal thereof, shall be preserved
and remain in force notwithstanding such repeal,
unless specially and expressly remitted, abrogated or
done away with by the repealing statute. And criminal
prosecutions and actions at law or in equity founded
upon such repealed statute, whether instituted before
or after the repeal thereof, shall not be defeated or

37
Because awarding interest to Lands' End at the statutory
rate in Wis. Stat. § 807.01(4) (2013-14) does not have a
retroactive effect or impair vested rights, we need not address
the rational basis test, see Pension Benefit Guaranty Corp. v.
R.A. Gray & Co., 467 U.S. 717, 730 (1984); Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 15 (1976), or Lands' End's
argument regarding the balancing of the public interest served
by applying the amended law retroactively against the private
interests that retroactive application would affect. See
Matthies, 244 Wis. 2d 720, ¶27.

30
 No. 2015AP179

impaired by such repeal but shall, notwithstanding
such repeal, proceed to judgment in the same manner
and to the like purpose and effect as if the repealed
statute continued in full force to the time of final
judgment thereon, unless the offenses, penalties,
forfeitures or rights of action on which such
prosecutions or actions shall be founded shall be
specially and expressly remitted, abrogated or done
away with by such repealing statute.
¶85 Before we discuss Lands' End's arguments regarding

Wis. Stat. § 990.04 (2013-14) we observe that the arguments are

largely undeveloped. "We do not usually address undeveloped
arguments."38 Nevertheless, Lands' End cited several cases

interpreting and applying Wis. Stat. § 990.04 (2013-14). These

cases do not support Lands' End's position.

¶86 Specifically, Lands' End relies upon the

interpretation of Wis. Stat. § 990.04 in Jackson County Iron Co.

v. Musolf, 134 Wis. 2d 95, 104, 396 N.W.2d 323 (1986). The

Jackson County court stated: "[I]t is the clear intention of

sec. 990.04 to preserve all rights which may have arisen before

the repeal of a statute unless such rights are 'specially and

expressly remitted, abrogated or done away with by the repealing

statute.'" 134 Wis. 2d at 104 (emphasis added) (quoting Niesen
v. State, 30 Wis. 2d 490, 493-94, 141 N.W.2d 194 (1966)).

¶87 Jackson County cites Bratton v. Town of Johnson, 76

Wis. 430, 434, 45 N.W. 412 (1890). Bratton discussed the effect

of the repeal of statutory remedies, stating, "The repeal of

38
See DOJ v. DWD, 2015 WI 114, ¶33, 365 Wis. 2d 694, 875
N.W.2d 545 (quoting State v. Gracia, 2013 WI 15, ¶28 n.13, 345
Wis. 2d 488, 826 N.W.2d 87) (alteration omitted).

31
 No. 2015AP179

statutes that simply affect the remedy does not defeat or impair

any civil liability incurred, or rights of action accrued, under

them, . . . unless specially and expressly remitted, abrogated,

or done away with by such repealing statute." Bratton, 76 Wis.

at 434.

¶88 Lands' End's right to interest did not arise until

Lands' End recovered a judgment; this event occurred when Lands'

End recovered a judgment after Wis. Stat. § 807.01(4) (2013-14)

took effect. As a result, Lands' End's reliance on Wis. Stat.

§ 990.04 (2013-14) is misplaced.

¶89 This conclusion is reinforced by the court's

discussions of the predecessor of Wis. Stat. § 990.04 (2013-14),

Wis. Stat. § 370.04 (1953-54), in Waddell v. Mamat, 271

Wis. 176, 181, 72 N.W.2d 763 (1955), and Metropolitan Life

Insurance Co. v. Wisconsin Labor Relations Board, 237 Wis. 464,

297 N.W. 430 (1941).

¶90 Both Waddell and Metropolitan Life distinguished

between accrued, legally enforceable rights and rights
contingent on future events, observing that such contingent

rights "could ripen into a right preserved by sec. 370.04 only

upon the happening of a further event . . . ." See Waddell, 271

Wis. at 181 (citing Metro. Life Ins. Co. v. Wis. Labor Relations

Bd., 237 Wis. 464, 297 N.W. 430 (1941)). Under Waddell and

Metropolitan Life, an unperfected or "inchoate" right, dependent

on future events, is not protected by Wis. Stat. § 990.04. See

Waddell, 271 Wis. at 181; Metropolitan Life, 237 Wis. at 472.

32
 No. 2015AP179

¶91 Lands' End argues in effect that it has "perfected" or

"accrued" a right to the 12 percent statutory rate of interest

in Wis. Stat. § 807.01(4) (2009-10) because its remedy under

§ 807.01(4) (2009-10) was perfected or accrued before Wis. Stat.

§ 807.01(4) (2013-14) took effect.

¶92 As we have previously explained, however, Lands' End

did not have a perfected or accrued (or "vested" or "ripened")

right to the 12 percent interest rate before Wis. Stat.

§ 807.01(4) (2013-14) took effect. Lands' End's right to

recover interest under Wis. Stat. § 807.01(4) (2009-10) was

inchoate; it was contingent on Lands' End's first obtaining a

judgment for as much or more than the amount of its offer of

settlement.

¶93 Wisconsin Stat. § 990.04 (2013-14) is thus not

implicated in the instant case.

(5)

¶94 Finally, Lands' End argues that if Wis. Stat.

§ 807.01(4) (2013-14) is applied to Lands' End in the instant
case, the Equal Protection clauses of the federal and state

constitutions would be violated. A recurring theme in Lands'

End's discussion of equal protection (as elsewhere) is that it

is being harmed because of the circuit court's error in denying

Lands' End's motion for summary judgment (which resulted in

Lands' End recovering a judgment after Wis. Stat. § 807.01(4)

(2013-14) took effect). We discussed our rejection of this

theme in ¶¶62-64, above.

33
 No. 2015AP179

¶95 Our case law takes various approaches to analyzing

equal protection challenges. We follow the approach taken by

Lands' End.

¶96 Equal protection challenges can be addressed in three

steps: (1) does the statute create a distinct class of persons,

(2) does the statute treat that class of persons differently

from all others similarly situated; and (3) does a rational

basis exist for the difference in treatment? See Metro. Assocs.

v. City of Milwaukee, 2011 WI 20, ¶23, 332 Wis. 2d 85, 796

N.W.2d 717 (citing Nankin v. Vill. of Shorewood, 2001 WI 92, 245

Wis. 2d 86, 630 N.W.2d 141).

¶97 Lands' End argues that 2011 Wis. Act 69 (enacting Wis.

Stat. § 807.01(4) (2013-14)) creates two distinct classes——those

who made an offer of settlement and recovered a judgment while

Wis. Stat. § 807.01(4) (2009-10) was in effect, and those who

made an offer of settlement prior to Act 69 but did not recover

a judgment until after the enactment of Wis. Stat. § 807.01(4)

(2013-14). Lands' End argues that these classes are treated
differently——those in the first class are entitled to interest

at a rate of 12 percent under Wis. Stat. § 807.01(4) (2009-10),

while those in the second class are entitled to interest at "1

percent plus the prime rate" under Wis. Stat. § 807.01(4) (2013-

14).

¶98 In Lands' End's view, because this classification is

"irrational or arbitrary," it violates the Equal Protection

clauses of the federal and state constitutions. See Metro.
Assocs., 332 Wis. 2d 85, ¶61 (quotation omitted).
34
 No. 2015AP179

¶99 Because Wis. Stat. § 807.01(4) does not implicate

fundamental rights or suspect classifications, we apply the

rational basis test in assessing Lands' End's equal protection

challenge. See Ferdon ex rel. Petrucelli v. Wis. Patients Comp.

Fund, 2005 WI 125, ¶¶64-66, 284 Wis. 2d 573, 701 N.W.2d 440.

¶100 In assessing the rationality of a legislative

classification, Lands' End directs us to five criteria:

(1) All classification[s] must be based upon
substantial distinctions which make one class
really different from another;

(2) The classification adopted must be germane to the
purpose of the law;

(3) The classification must not be based on existing
circumstances only. [It must not be so
constituted as to preclude addition to the
numbers included within the class];

(4) To whatever class a law may apply, it must apply
equally to each member thereof;

(5) The characteristics of each class should be so
far different from those of other classes as to
reasonably suggest at least the propriety, having
regard to the public good, of substantially
different legislation.
Metro. Assocs., 332 Wis. 2d 85, ¶64 (citing Nankin, 245

Wis. 2d 86, ¶39).

¶101 Lands' End argues that if Wis. Stat. § 807.01(4)

(2013-14) is applied to those who made offers of settlement

while Wis. Stat. § 807.01(4) (2009-10) was in effect, the

classification created by the amended version of the statute

(2011 Wis. Act 69) fails the first, second, and fifth criteria.
We disagree with Lands' End.

35
 No. 2015AP179

¶102 As to the first criterion, Lands' End argues that no

real difference exists between the two classes of plaintiffs

that Lands' End identified. The argument is that the only real

difference between the two classes is that the recovery of

judgment was delayed for plaintiffs like Lands' End (in Lands'

End's case, because of an erroneous circuit court decision).

¶103 We conclude that the classes identified by Lands' End

are substantially distinct from one another. As we explained

previously, Lands' End and others who made offers of settlement

under Wis. Stat. § 807.01(4) (2009-10) but did not recover a

judgment until after § 807.01(4) (2013-14) took effect did not

acquire a vested right in the statutory interest rate in effect

when they made their offers of settlement.

¶104 Conversely, parties who made offers of settlement and

recovered judgments for as much or more than the offer prior to

the effective date of Wis. Stat. § 807.01(4) (2013-14) do have

vested rights in the 12 percent interest rate, as long as they

have met all the requirements to recover interest under Wis.
Stat. § 807.01(4) (2009-10). This is a substantial distinction.

¶105 As to the second criterion, Lands' End asserts again

that denying 12 percent interest to plaintiffs like Lands' End,

for whom recovery of judgment was delayed by a circuit court

error, is not germane to the purpose of the statute.

¶106 In evaluating "whether a legislative classification

rationally advances the legislative objective, 'we are obligated

to locate or, in the alternative, construct a rationale that
might have influenced the legislative determination.'" Ferdon,
36
 No. 2015AP179

284 Wis. 2d 573, ¶74 (quoting Aicher ex rel. LaBarge v. Wis.

Patients Comp. Fund, 2000 WI 98, ¶57, 237 Wis. 2d 99, 613

N.W.2d 849).

¶107 Amending the statute governing interest rates

applicable to offers of settlement to reduce the applicable rate

of interest to near-market rates for those who recover a

judgment after Wis. Stat. § 807.01(4) (2013-14) took effect

fulfills various legislative objectives: (1) it ensures that

prevailing parties will be compensated fairly and reasonably for

being unable to use money to which they are entitled during the

pendency of the litigation;39 and (2) it justly and practicably

alleviates the unreasonable burden of imposing liability for

interest far above market interest rates on the payor.

¶108 By tying the interest rate in Wis. Stat. § 807.01(4)

(2013-14) to market rates, the legislature created a system that

is fair to both parties under the circumstance of the instant

case. Parties like Lands' End are still compensated at an

above-market rate for being unable to use money to which they
are "entitled" during the pendency of the litigation, while

defendants like the City of Dodgeville still have an incentive

to accept reasonable settlement offers.

¶109 Finally, addressing the fifth criterion, Lands' End

does not find any distinctions between the classes created by

2011 Wis. Act 69, again arguing that the difference is that the

39
See Upthegrove Hardware, Inc. v. Pa. Lumbermans Ins. Co.,
152 Wis. 2d 7, 13, 447 N.W.2d 367 (Ct. App. 1989).

37
 No. 2015AP179

circuit court erred initially and the court of appeals did not

reverse the circuit court timely.

¶110 We conclude that, having regard to the public good,

the legislature could reasonably conclude that treating parties

with vested rights differently from parties who do not have

vested rights is rational. Doing otherwise may raise due

process questions. See Soc'y Ins., 326 Wis. 2d 444, ¶29.

¶111 Accordingly, we conclude that applying Wis. Stat.

§ 807.01(4) (2013-14) to those, like Lands' End, who made offers

of settlement while Wis. Stat. § 807.01(4) (2009-10) was in

effect but who did not recover a judgment until after Wis. Stat.

§ 807.01(4) (2013-14) took effect does not violate the Equal

Protection clauses of the federal and state constitutions.

* * * *

¶112 For the reasons set forth, we affirm the circuit

court's judgment and order awarding Lands' End interest at "1

percent plus the prime rate," the rate in the amended version of

the statute, Wis. Stat. § 807.01(4) (2013-14), which was in
effect when Lands' End recovered its judgment against the City

of Dodgeville.

¶113 Awarding interest at "1 percent plus the prime rate"

in the instant case is not a retroactive application of Wis.

Stat. § 807.01(4) (2013-14) and Lands' End did not have a vested

right in the 12 percent interest rate in effect in Wis. Stat.

§ 807.01(4) (2009-10) at the time Lands' End made its offer of

settlement. The circuit court's judgment and order do not
violate the Due Process clauses of the federal and state
38
 No. 2015AP179

constitutions or Wis. Stat. § 990.04. Moreover, because the

legislature had a rational basis for changing the applicable

interest rate from 12 percent to "1 percent plus the prime rate"

and did not create an irrational or arbitrary classification,

awarding interest under Wis. Stat. § 807.01(4) (2013-14) does

not violate the Equal Protection clauses of the federal and

state constitutions.

¶114 Our decision in the instant case is contrary to the

opinion of the court of appeals' in Johnson v. Cintas Corp. No.

2, 2015 WI App 14, 360 Wis. 2d 350, 860 N.W.2d 515. In Johnson,

the court of appeals held that applying the amended version of

the rate of interest to offers of settlement made prior to the

effective date of the amended version would disturb a vested

right to interest. Johnson is an officially published opinion

of the court of appeals. "Officially published opinions of the

court of appeals shall have statewide precedential effect."

Wis. Stat. § 752.41(2) (2013-14). We overrule the Johnson

decision.
¶115 Accordingly, we affirm the judgment and order of the

circuit court in the instant case.

By the Court.—The order and judgment of the circuit court

is affirmed.

¶116 REBECCA G. BRADLEY, J., did not participate.

39
 No. 2015AP179.akz

¶117 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I

concur in the lead opinion's conclusion to affirm; I do not join

the lead opinion's entire analysis.1 Although I agree with much

of the lead opinion's analysis in this case, I write separately

because I fear our jurisprudence on retroactive legislation is

in the process of becoming unmoored from fundamental principles

of constitutional law and statutory interpretation. For

example, while the lead opinion cites specific factors pertinent

to the instant case, it fails to anchor those factors to the

overriding applicable principles. Therefore, I write to

reemphasize the relevant framework when the court analyzes a

claim that legislation is retroactive and cannot be applied in a

particular case.

¶118 I also write because in retroactive legislation cases,

Wisconsin jurisprudence has sometimes muddied the waters, using

the concept of rational basis review interchangeably with the

concept of a "balancing test."2 As will be explained, these two
1
I also concur in the lead opinion's decision to overrule
Johnson v. Cintas Corp. No. 2, 2015 WI App 14, 360 Wis. 2d 350,
860 N.W.2d 515. See infra ¶¶176 n.15, 177 n.16; lead op., ¶¶7,
116.
2
Traditionally, a balancing test is a totality-of-the
circumstances-type test. See, e.g., State v. Malone, 2004 WI
108, ¶21, 274 Wis. 2d 540, 683 N.W.2d 1 ("Law enforcement action
is to be judged against the standard of reasonableness, which in
turn 'depends "on a balance between the public interest and the
individual's right to personal security free from arbitrary
interference by law officers."' In crafting this balance, this
court must carefully scrutinize the totality of the
circumstances" (citations omitted).). In contrast, in applying
a rational basis test, a court does not, for instance, balance
society's expectations; the court simply determines whether the
legislature had a rational basis for doing what it did.

1
 No. 2015AP179.akz

concepts could be applied consistently with each other, as long

as the balancing test is understood to be a tool to determine

whether a statute is rationally related to a legitimate

government purpose.3

¶119 Wisconsin Stat. § 807.01(4) (2009-10) entitles a party

who recovers a judgment greater than or equal to the amount

specified in the party's earlier, rejected offer of settlement

to obtain interest at an annual rate of 12 percent on the amount

recovered from the date of the offer of settlement until the

amount is paid. Wis. Stat. § 807.01(4) (2009-10). In 2011 the

legislature amended Wis. Stat. § 807.01(4) (2009-10), reducing

the applicable interest rate to "1 percent plus the prime

rate . . . as reported by the federal reserve board in federal

reserve statistical release H. 15." See 2011 Wis. Act 69; Wis.

Stat. § 807.01(4) (2013-14).4

¶120 Lands' End, Inc. ("Lands' End") has been embroiled in

litigation with the City of Dodgeville ("the City") for several

3
We took this case in large part to address the Johnson
court's assessment of a due process challenge to the amendments
to Wis. Stat. § 807.01(4). The Johnson court applied our due
process balancing test and concluded that application of Wis.
Stat. § 807.01(4) (2013-14) in that case was unconstitutional.
Johnson, 360 Wis. 2d 350, ¶¶27-29. Lands' End, Inc. devotes
much of its briefing to its own due process challenge to the
amendments to Wis. Stat. § 807.01(4), relying extensively on
Johnson.
4
The statute provides that the applicable prime rate in a
given case is the "the prime rate in effect on January 1 of the
year in which the judgment is entered if the judgment is entered
on or before June 30 of that year or in effect on July 1 of the
year in which the judgment is entered if the judgment is entered
after June 30 of that year." Wis. Stat. § 807.01(4) (2013-14).

2
 No. 2015AP179.akz

years. Lands' End tendered an offer of settlement to the City

prior to the amendments to Wis. Stat. § 807.01(4), but recovered

or will recover a judgment greater than the amount specified in

that settlement offer after the amendment to § 807.01(4) (2009-

10) has taken effect.

¶121 Lands' End insists that it is entitled to the 12

percent interest rate in the pre-2011 version of § 807.01(4),

and supports its claim with four arguments.

¶122 First, Lands' End relies on a canon of statutory

construction known as the "presumption against retroactivity" to

argue that this court should simply interpret Wis. Stat.

§ 807.01(4) (2013-14) so that the new interest rate does not

apply to Lands' End. See generally Antonin Scalia & Bryan A.

Garner, Reading Law 261-65 (2012). Next, Lands' End argues that

constitutional guarantees prohibit the Wisconsin State

Legislature from reducing the interest rate in Wis. Stat.

§ 807.01(4) (2009-10) and applying that new rate to parties,

such as Lands' End, who had made offers of settlement prior to
the amendments to that statute. Specifically, Lands' End

contends that, because it possesses a "vested" right to the

earlier 12 percent interest rate, application to Lands' End of

the amendments to § 807.01(4) violates the Due Process Clause of

the Fourteenth Amendment to the United States Constitution,

which bars states from depriving persons of life, liberty, or

property "without adequate procedures," Arneson v. Jezwinski,

225 Wis. 2d 371, 400, 592 N.W.2d 606 (1999) (citation omitted),
and which separately "provides protection from 'certain

3
 No. 2015AP179.akz

arbitrary, wrongful government actions,'" State ex rel. Greer v.

Wiedenhoeft, 2014 WI 19, ¶57, 353 Wis. 2d 307, 845 N.W.2d 373

(citation omitted). See U.S. Const. amend XIV, § 1.5 Lands' End

also argues that application to it of the amendments to Wis.

Stat. § 807.01(4) violates the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution, which

"is designed to assure that those who are similarly situated

will be treated similarly." State v. Smith, 2010 WI 16, ¶15,

323 Wis. 2d 377, 780 N.W.2d 90 (citation omitted). See U.S.

Const. amend XIV, § 1.6

¶123 Finally, Lands' End claims that application to it of

the amendments to § 807.01(4) violates Wis. Stat. § 990.04

(2013-14), which provides in part that the repeal of a statute

does not remit, defeat, or impair any civil or criminal

liability for offenses committed, penalties or forfeitures

5
Lands' End actually does not appear to specify whether it
is bringing a due process claim under the federal constitution,
the state constitution, or both. As will be explained, this
does not affect the outcome of my analysis. See infra n.6.
6
Lands' End also brings a claim under the equal protection
provision of the Wisconsin Constitution. See Wis. Const. art.
1, § 1; Aicher v. Wis. Patients Compensation Fund, 2000 WI 98,
¶55 & n.14, 237 Wis. 2d 99, 613 N.W.2d 849. As noted, supra
n.5, the nature of Lands' End's due process claim is not clear.
However, "[t]his court has held the due process and equal
protection clauses of the Wisconsin Constitution are the
substantial equivalents of their respective clauses in the
federal constitution," and Lands' End does not argue that we
should interpret the federal and state constitutions differently
in this case. State v. Smith, 2010 WI 16, ¶12, 323 Wis. 2d 377,
780 N.W.2d 90. For simplicity, I will therefore refer only to
the federal constitution in this writing, as this will equally
dispose of any state constitutional claims.

4
 No. 2015AP179.akz

incurred, or rights of action accrued prior to the repeal of the

repealed statute, unless the legislature expressly states

otherwise. See Wis. Stat. § 990.04 (2013-14).

¶124 Each of Lands' End's arguments fail. First, the canon

of construction——the presumption against retroactivity——does not

apply because under these facts Lands' End has failed to

demonstrate that Wis. Stat. § 807.01(4) (2013-14) has

retroactive effect. Lands' End's due process claim is based

upon the statute having retroactive effect. Because under these

facts it does not, Lands' End's due process claim does not

warrant discussion.

¶125 Second, Lands' End's right to equal protection under

the law is not violated by Wis. Stat. § 807.01(4) (2013-14).

Lands' End does not argue, nor does this record support the

argument, that this case involves fundamental rights or suspect

classes. There is a "reasonable basis" for differentiating

between parties which had and which had not obtained judgments

prior to enactment of Wis. Stat. § 807.01(4) (2013-14). See
Smith, 323 Wis. 2d 377, ¶15.

¶126 Finally, the amendments to Wis. Stat. § 807.01(4) do

not "remit, defeat or impair any civil or criminal liability for

offenses committed, penalties or forfeitures incurred or rights

of action accrued under" Wis. Stat. § 807.01(4) (2009-10), so

Wis. Stat. § 990.04 (2013-14) does not apply. Consequently, I

would affirm the decision of the circuit court.

I. THE POLICE POWER OF THE STATES AND THE
PRESUMPTION OF CONSTITUTIONALITY

5
 No. 2015AP179.akz

¶127 In part, this case focuses on a putative limit on our

state legislature: Lands' End argues that, after it made an

offer of settlement to the City under Wis. Stat. § 807.01(4)

(2009-10), the legislature was powerless to change the interest

rate applicable to the amount Lands' End might ultimately

recover from the City. In order to understand more fully any

applicable limits on state legislative power, it is appropriate

first to review the nature of the power to which such

limitations would apply.

[P]revious to the formation of the new constitution,
we were divided into independent states, united for
some purposes, but in most respects, sovereign. These
states could exercise almost every legislative
power . . . . When the American people created a
national legislature, with certain enumerated powers,
it was neither necessary nor proper to define the
powers retained by the states. These powers proceed,
not from the people of America, but from the people of
the several states; and remain, after the adoption of
the constitution, what they were before, except so far
as they may be abridged by that instrument.
Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 192-93 (1819)

(per Marshall, C.J.).
¶128 Thus, "[i]n our federal system, the National

Government possesses only limited powers; the States and the

people retain the remainder. The States have broad authority to

enact legislation for the public good——what we have often called

a 'police power.'" Bond v. United States, 572 U.S. __, 134 S.

Ct. 2077, 2086 (2014) (citation omitted). This authority is

indeed broad: "it is much easier to perceive and realize the

existence and sources of it than to mark its boundaries, or
prescribe limits to its exercise." Slaughter-House Cases, 83

6
 No. 2015AP179.akz

U.S. (16 Wall.) 36, 62 (1872) (citation omitted); see also

Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 83 (1946)

(police power is "one of the least limitable of governmental

powers" (citations omitted).). This is so because the "police

power" is simply "the powers of government inherent in every

sovereignty to the extent of its dominions." Nebbia v. New

York, 291 U.S. 502, 524 (1934) (citation omitted).

¶129 Partial definitions have, however, been attempted.

"[T]he police power of a state embraces regulations designed to

promote the public convenience or the general prosperity, as

well as regulations designed to promote the public health, the

public morals, or the public safety." Chicago, B. & Q. Ry. Co.

v. Illinois, 200 U.S. 561, 592 (1906) (citations omitted); see

also Slaughter-House Cases, 83 U.S. at 62 (police power

"extends . . . to the protection of the lives, limbs, health,

comfort, and quiet of all persons, and the protection of all

property within the State" (citation omitted).).

¶130 All of this is not to say that the police power is
unlimited; it is of course subject to constitutional

restrictions. See, e.g., Lambert v. California, 355 U.S. 225,

228 (1957); Panhandle E. Pipe Line Co. v. State Highway Comm'n

of Kansas, 294 U.S. 613, 619 (1935); Nebbia, 291 U.S. at 524-25.

But this court must always be hesitant to exercise its own power

to declare that the legislature has exceeded its authority.

[The legislature] is supreme in all cases where it is
not restrained by the constitution; and as it is the
duty of legislators as well as judges to consult this
and conform their acts to it, so it should be presumed
that all their acts do conform to it unless the

7
 No. 2015AP179.akz

contrary is manifest. This confidence is necessary to
insure due obedience to its authority. If this be
frequently questioned, it must tend to diminish the
reverence for the laws which is essential to the
public safety and happiness. . . . The interference
of the judiciary with legislative Acts, if frequent or
on dubious grounds, might occasion so great a jealousy
of this power and so general a prejudice against it as
to lead to measures ending in the total overthrow of
the independence of the judges, and so of the best
preservative of the constitution. The validity of the
law ought not then to be questioned unless it is so
obviously repugnant to the constitution that when
pointed out by the judges, all men of sense and
reflection in the community may perceive the
repugnancy. By such a cautious exercise of this
judicial check, no jealousy of it will be excited, the
public confidence in it will be promoted, and its
salutary effects be justly and fully appreciated.
James B. Thayer, The Origin and Scope of the American Doctrine

of Constitutional Law, 7 Harv. L. Rev. 129, 142 (1893) (quoting

Byrne's Adm'rs v. Stewart's Adm'rs, 3 S.C. Eq. 466, 476-77 (3

Des. 466) (S.C. App. Eq. 1812)). Fittingly, then, this court

"has often affirmed the well-established presumption of

constitutionality that attaches itself to all legislative acts."

State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32,

46, 205 N.W.2d 784 (1973). In fact, we require litigants

challenging the constitutionality of a statute to establish the

statute's unconstitutionality "beyond a reasonable doubt."

Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶76, 358

Wis. 2d 1, 851 N.W.2d 337. We must view with skepticism any

claim that the legislature has violated the federal or state

constitutions.

II. RETROACTIVE LEGISLATION AND THE PRESUMPTION
AGAINST RETROACTIVITY

8
 No. 2015AP179.akz

¶131 This case requires the court to determine whether Wis.

Stat. § 807.01(4) (2013-14) is retroactive in effect. Generally

speaking, a retroactive law is "a legislative act that looks

backward or contemplates the past, affecting acts or facts that

existed before the act came into effect." Retroactive law,

Black's Law Dictionary 1511 (10th ed. 2014). On the other hand,

"[a] statute does not operate 'retrospectively' merely because

it is applied in a case arising from conduct antedating the

statute's enactment or upsets expectations based in prior law."

Landgraf v. USI Film Products, 511 U.S. 244, 269 (1994)

(citation omitted).7 Additionally, "a statute 'is not made

retroactive merely because it draws upon antecedent facts for

its operation.'" Id. at 269 n.24 (citation omitted).

¶132 Determining whether a statute has retroactive effect

"demands a commonsense, functional judgment about 'whether the

new provision attaches new legal consequences to events

completed before its enactment.'" Martin v. Hadix, 527 U.S.

343, 357-58 (1999) (citation omitted).

The conclusion that a particular rule operates
"retroactively" comes at the end of a process of
judgment concerning the nature and extent of the
change in the law and the degree of connection between
the operation of the new rule and a relevant past
event. Any test of retroactivity will leave room for
disagreement in hard cases, and is unlikely to

7
Although the words "retroactive" and "retrospective"
technically possess distinct meanings, see, e.g., 16B Am. Jur.
2d Constitutional Law § 735, the terms "are synonymous in
judicial usage and may be employed interchangeably." 2
Sutherland Statutory Construction § 41:1 (7th ed.). See also
Landgraf v. USI Film Products, 511 U.S. 244, 269 n.23 (1994).

9
 No. 2015AP179.akz

classify the enormous variety of legal changes with
perfect philosophical clarity. However, retroactivity
is a matter on which judges tend to have
"sound . . . instinct[s]," see Danforth v. Groton
Water Co., 178 Mass. 472, 476, 59 N.E. 1033, 1034
(1901) (Holmes, J.), and familiar considerations of
fair notice, reasonable reliance, and settled
expectations offer sound guidance.

Landgraf, 511 U.S. at 269.
¶133 State statutes are not unconstitutional simply because

they apply retroactively. League v. Texas, 184 U.S. 156, 161

(1902). "That there exists a general power in the state

governments to enact retrospective or retroactive laws, is a

point too well settled to admit of question at this day." Id.

(internal quotation marks omitted) (citation omitted). "Absent

a violation of one of [the Constitution's] specific provisions,

the potential unfairness of retroactive civil legislation is not

a sufficient reason for a court to fail to give a statute its

intended scope." Landgraf, 511 U.S. at 267.

¶134 At the same time, "[t]he principle that the legal

effect of conduct should ordinarily be assessed under the law

that existed when the conduct took place has timeless and

universal human appeal" and "has long been a solid foundation of

American law." Kaiser Aluminum & Chemical Corp. v. Bonjorno,

494 U.S. 827, 855 (1990) (Scalia, J, concurring). "Elementary

considerations of fairness dictate that individuals should have

an opportunity to know what the law is and to conform their

conduct accordingly; settled expectations should not be lightly

disrupted." Landgraf, 511 U.S. at 265. Thus,

[t]he presumption is very strong that a statute was
not meant to act retrospectively, and it ought never
to receive such a construction if it is susceptible of
10
 No. 2015AP179.akz

any other. It ought not to receive such a
construction unless the words used are so clear,
strong and imperative that no other meaning can be
annexed to them or unless the intention of the
legislature cannot be otherwise satisfied.
U.S. Fid. & Guar. Co v. United States, 209 U.S. 306, 314 (1908)

(citations omitted). In sum, this "presumption against

retroactivity" is a "guide to interpretation, not a

constitutional imperative, because the presumption applies even

when the Constitution does not forbid retroactivity." Antonin

Scalia & Bryan A. Garner, supra at 261.

¶135 Given the foregoing, analysis in cases involving

potentially-retroactive legislation follows a three-step

process: (1) the court determines whether the legislature has

"expressly prescribed the statute's proper reach," because if it

has done so, "there is no need to resort to judicial default

rules" and the statute is applied as written;8 (2) if it is

unclear whether the statute is meant to apply retroactively, the

court "must determine whether the new statute would have

retroactive effect, i.e., whether it would impair rights a party

possessed when he acted, increase a party's liability for past

conduct, or impose new duties with respect to transactions

already completed"; and (3) if the court concludes the statute

would indeed have a retroactive effect, the presumption against

retroactivity is applied and the statute is not applied

8
"[I]n the absence of language as helpful as [an express
prescription,] [the court] tr[ies] to draw a comparably firm
conclusion about the temporal reach specifically intended by
applying '[its] normal rules of construction.'" Fernandez-
Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (citation omitted).

11
 No. 2015AP179.akz

retroactively. Landgraf, 511 U.S. at 280; see also Fernandez-

Vargas v. Gonzales, 548 U.S. 30, 37 (2006).

¶136 Much litigation revolves around part two of this

three-part test: resolving the question of whether a particular

enactment applies retroactively. See e.g., Vartelas v. Holder,

566 U.S. ___, 132 S. Ct. 1479, 1483-84 (2012). It is in the

resolution of these types of questions that certain other legal

issues become relevant, such as whether a statute is procedural

or substantive and whether application of the statute would

upset "vested rights." See, e.g., Landgraf, 511 U.S. at 273-75.9

It is worth dwelling on this latter point for a moment.
9
The Supreme Court has stated that "[e]ven absent specific
legislative authorization, application of new statutes passed
after the events in suit is unquestionably proper in many
situations." Landgraf, 511 U.S. at 273. First, "[w]hen the
intervening statute authorizes or affects the propriety of
prospective relief, application of the new provision is not
retroactive." Id. Second, the Supreme Court has

regularly applied intervening statutes conferring or
ousting jurisdiction, whether or not jurisdiction lay
when the underlying conduct occurred or when the suit
was filed. . . . Present law normally governs in such
situations because jurisdictional statutes "speak to
the power of the court rather than to the rights or
obligations of the parties."

Id. at 274 (citation omitted). Third,

[c]hanges in procedural rules may often be applied in
suits arising before their enactment without raising
concerns about retroactivity. . . . Because rules of
procedure regulate secondary rather than primary
conduct, the fact that a new procedural rule was
instituted after the conduct giving rise to the suit
does not make application of the rule at trial
retroactive.

Id. at 275 (citation omitted).

12
 No. 2015AP179.akz

¶137 The Supreme Court has at least implicitly

characterized a "vested right" as "an immediate fixed right of

present or future enjoyment." Fernandez-Vargas, 548 U.S. at 44

n.10 (quoting Pearsall v. Great N. Ry. Co., 161 U.S. 646, 673

(1896)).

[R]ights are vested, in contradistinction to being
expectant or contingent. They are vested when the
right to enjoyment, present or prospective, has become
the property of some particular person or persons, as
a present interest. They are expectant when they
depend upon the continued existence of the present
condition of things until the happening of some future
event. They are contingent when they are only to come
into existence on an event or condition which may not
happen or be performed until some other event may
prevent their vesting.
Pearsall, 161 U.S. at 673 (internal quotation marks omitted)

(citation omitted).

¶138 The concept of vested rights is at issue in this case

because "every statute, which takes away or impairs vested

rights acquired under existing laws, or creates a new

obligation, imposes a new duty, or attaches a new disability, in

respect to transactions or considerations already past, must be

deemed retrospective." Landgraf, 511 U.S. at 269 (quoting

Society for Propagation of the Gospel v. Wheeler, 22 F. Cas.

756, 767 (C.C.N.H. 1814) (No. 13,156) (Story, Circuit Justice)

(emphases added)).

¶139 Thus, in cases involving retroactive legislation,

courts may examine whether a party has a "vested right" that

would be impaired by application of a statute in order to
"determine whether application of the statute[] in question to

the party challenging the statute actually has a retroactive
13
 No. 2015AP179.akz

effect." Society Ins. v. LIRC, 2010 WI 68, ¶29, 326

Wis. 2d 444, 786 N.W.2d 385; see also Barbara B. v. Dorian H.,

2005 WI 6, ¶20, 277 Wis. 2d 378, 690 N.W.2d 849; Matthies v.

Positive Safety Mfg. Co., 2001 WI 82, ¶¶19, 23, 244 Wis. 2d 720,

628 N.W.2d 842.10 If a statute has retroactive effect, the

presumption against retroactivity becomes relevant. Landgraf,

511 U.S. at 280.

¶140 But, again, when the legislature unambiguously

establishes that a law applies to conduct which has already

occurred, the presumption against retroactivity is no longer

relevant; courts must simply apply the words of the

legislature——even if the statute has retroactive effect——unless

they violate some constitutional stricture. See id. at 267, 273

("[W]e have recognized that, in many situations, a court should

10
This application of the vested rights concept should not
be confused with statements in some of our earlier cases that
"[a] legislature may not constitutionally enact a law which
impairs vested rights acquired under prior law, nor may it
'enact retrospective laws creating new obligations with respect
to past transactions.'" State ex rel. Briggs & Stratton Corp.
v. Noll, 100 Wis. 2d 650, 656, 302 N.W.2d 487 (1981) (citation
omitted), overruled by Neiman v. Am. Nat. Prop. & Cas. Co., 2000
WI 83, 236 Wis. 2d 411, 613 N.W.2d 160. We have since changed
course, explaining that "[t]o the extent the language in prior
holdings implies that identifying a 'vested' right is
dispositive in determining whether a clearly retroactive statute
is constitutional, that language is overruled." Neiman, 236
Wis. 2d 411, ¶14.

I note that many prior cases of the Supreme Court in the
field of retroactive legislation were determined "during an era
characterized by exacting review of economic legislation under
an approach that 'has long since been discarded.'" United
States v. Carlton, 512 U.S. 26, 34 (1994) (citation omitted).

14
 No. 2015AP179.akz

'apply the law in effect at the time it renders its decision,'

even though that law was enacted after the events that gave rise

to the suit. There is, of course, no conflict between that

principle and a presumption against retroactivity when the

statute in question is unambiguous" (citation omitted) (emphasis

removed).); U. S. Fidelity, 209 U.S. at 314.

¶141 This takes us to the final general consideration in

cases involving retroactive legislation: what the Constitution

has to say about legislation that is clearly retroactive in

effect. The Supreme Court of the United States addressed this

precise topic earlier this year:

[T]he restrictions that the Constitution places on
retroactive legislation "are of limited scope":

The Ex Post Facto Clause flatly prohibits
retroactive application of penal
legislation. Article I, § 10, cl. 1,
prohibits States from passing . . . laws
"impairing the Obligation of Contracts."
The Fifth Amendment's Takings Clause
prevents the Legislature (and other
government actors) from depriving private
persons of vested property rights except for
a "public use" and upon payment of "just
compensation." The prohibitions on "Bills
of Attainder" in Art. I, §§ 9–10, prohibit
legislatures from singling out disfavored
persons and meting out summary punishment
for past conduct. The Due Process Clause
also protects the interests in fair notice
and repose that may be compromised by
retroactive legislation; a justification
sufficient to validate a statute's
prospective application under the Clause
"may not suffice" to warrant its retroactive
application.

"Absent a violation of one of those specific
provisions," when a new law makes clear that it is
retroactive, the arguable "unfairness of retroactive
15
 No. 2015AP179.akz

civil legislation is not a sufficient reason for a
court to fail to give [that law] its intended scope."
Bank Markazi v. Peterson, 578 U.S. ___, 136 S. Ct. 1310, 1324-25

(2016) (quoting Landgraf, 511 U.S. at 266-68).

¶142 The current case features due process and equal

protection challenges to the putatively retroactive application

of Wis. Stat. § 807.01(4) (2013-14). Because of certain

misapprehensions in the proceedings before this court and in the

proceedings that occurred in a similar case involving the same

basic issues, namely Johnson, I will next discuss the applicable

framework for analysis of these claims.

III. DUE PROCESS CHALLENGES TO RETROACTIVE LEGISLATION

¶143 The Fourteenth Amendment to the federal constitution

provides in part that no state shall "deprive any person of

life, liberty, or property, without due process of law." U.S.

Const. amend. XIV, § 1.

¶144 The Due Process Clause "imposes procedural limitations

on a State's power to take away protected entitlements."

District Attorney's Office for Third Judicial Dist. v. Osborne,

557 U.S. 52, 67 (2009) (emphasis added) (citation omitted).

Thus, for instance, the amendment requires "that deprivation of

life, liberty or property by adjudication be preceded by notice

and opportunity for hearing appropriate to the nature of the

case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 313 (1950).

¶145 The Due Process Clause has also been interpreted to

possess a "substantive component . . . that protects individual
liberty against 'certain government actions regardless of the

16
 No. 2015AP179.akz

fairness of the procedures used to implement them.'" Collins v.

Harker Heights, Tex., 503 U.S. 115, 125 (1992) (emphases added)

(citation omitted).

¶146 Lands' End is not, apparently, arguing that the

procedures by which the State has (putatively) deprived it of

life, liberty or property——here, the enactment of a law by the

legislative and executive branches of our state government——were

constitutionally inadequate. Cf. Missouri v. Jenkins,

495 U.S. 33, 66 (1990) (Kennedy, J., concurring in part and

concurring in the judgment) ("[C]itizens who are taxed [by a

legislature] are given notice and a hearing through their

representatives, whose power is a direct manifestation of the

citizens' consent."); Atkins v. Parker, 472 U.S. 115, 129-30

(1985) ("[A] welfare recipient is not deprived of due process

when the legislature adjusts benefit levels . . . . [T]he

legislative determination provides all the process that is due"

(citation omitted).).

¶147 Instead, Lands' End contends that the federal
constitution prohibits the legislature from taking the type of

action that it did regardless of any procedural protections;

that is, Lands' End argues that application to it of the

amendments to Wis. Stat. § 807.01(4) is unconstitutional no

matter how the alleged deprivation is implemented. This is a

substantive due process claim. See Barbara B., 277 Wis. 2d 378,

¶18 n.14 ("[Petitioner] is not arguing that the procedure

applied in his case was unfair. Instead, he is arguing that it
is unfair to apply [the statute] retroactively because he

17
 No. 2015AP179.akz

believes that it is wrong to apply those substantive rules to

his case in light of the law that he alleges had previously been

in place. Thus, it appears that [petitioner] is asserting a

substantive due process claim, rather than a procedural due

process claim" (citation omitted).); United States v. Carlton,

512 U.S. 26, 39-42 (1994) (Scalia, J., concurring) (framing

retroactive tax legislation case as one involving substantive

due process); Pension Ben. Guar. Corp. v. R. A. Gray & Co., 467

U.S. 717, 731-32 (1984) ("We have doubts . . . that retroactive

application of the [statute] would be invalid under the Due

Process Clause for lack of notice even if it was suddenly

enacted by Congress without any period of deliberate

consideration, as often occurs with floor amendments or 'riders'

added at the last minute to pending legislation."); James L.

Kainen, The Historical Framework for Reviving Constitutional

Protection for Property and Contract Rights, 79 Cornell L. Rev.

87, 112 (1993) ("Questions of retroactive law are essentially

questions of substantive due process . . ." (citation
omitted).); cf. Reno v. Flores, 507 U.S. 292, 302 (1993)

(substantive due process "forbids the government to infringe

certain 'fundamental' liberty interests at all, no matter what

process is provided, unless the infringement is narrowly

tailored to serve a compelling state interest.").

¶148 The federal constitution's guarantee of "substantive"

due process "provides heightened protection against government

interference with certain fundamental rights and liberty
interests." Washington v. Glucksberg, 521 U.S. 702, 719-20

18
 No. 2015AP179.akz

(1997) (citation omitted). The United States Supreme Court has

determined that these rights include, for example, the rights to

have children and to direct the education and upbringing of

one's children. Id. at 720. If a fundamental liberty interest

is identified, any infringement on it by the government must be

"narrowly tailored to serve a compelling state interest."

Flores, 507 U.S. at 302. If fundamental rights and liberties

are not at stake, however, the federal constitution requires

only that a challenged law "be rationally related to legitimate

government interests," Glucksberg, 521 U.S. at 728——that is,

neither "arbitrary" nor "irrational." Usery v. Turner Elkhorn

Mining Co., 428 U.S. 1, 15 (1976); see also Smith, 323

Wis. 2d 377, ¶12; Flores, 507 U.S. at 305.

¶149 For example, the Supreme Court has determined that,

unlike statutes pertaining to fundamental rights, "legislative

Acts adjusting the burdens and benefits of economic life" are

subject only to the "arbitrary and irrational" standard of

review. Pension Ben. Guar. Corp., 467 U.S. at 729; Usery, 428
U.S. at 15.

¶150 Lands' End does not argue that a fundamental right or

liberty is at stake. Instead, it claims that Wis. Stat.

§ 807.01(4) (2013-14) unconstitutionally impairs its "vested"

right in the 12 percent interest rate provided under Wis. Stat.

§ 807.01(4) (2009-10). The idea behind Lands' End's argument is

that, as it relied on the 12 percent interest rate in effect

when it made its offer of settlement to the City of Dodgeville,
the legislature may not apply a lower interest rate in Lands'

19
 No. 2015AP179.akz

End's case now that Lands' End has obtained a judgment in its

favor above the amount of its earlier settlement offer. To do

so, the argument presumably runs, would be to "deprive [Lands'

End] of . . . property, without due process of law." U.S.

Const. amend. XIV, § 1; see also Pearsall, 161 U.S. at 673

("[Rights] are vested when the right to enjoyment, present or

prospective, has become the property of some particular person

or persons, as a present interest" (citation omitted).); Society

Ins., 326 Wis. 2d 444, ¶30 (referring to "vested property

right[s]" in case involving due process challenge to retroactive

legislation).

¶151 As stated, there is no contention that the present

case involves fundamental rights or interests. Thus, we would

expect that even if Lands' End could be said to possess a vested

property right in a 12 percent interest rate on the judgment it

recovered, explicit abrogation of that right by the legislature

would be subject to rational basis review. And in fact, this is

exactly what relevant case law provides. The Supreme Court has
stated:

Provided that the retroactive application of a statute
is supported by a legitimate legislative purpose
furthered by rational means, judgments about the
wisdom of such legislation remain within the exclusive
province of the legislative and executive branches:

[O]ur cases are clear that legislation
readjusting rights and burdens is not
unlawful solely because it upsets otherwise
settled expectations. This is true even
though the effect of the legislation is to
impose a new duty or liability based on past
acts.

20
 No. 2015AP179.akz

To be sure, we [have] recognize[d] that
retroactive legislation does have to meet a burden not
faced by legislation that has only future effects.
"It does not follow . . . that what Congress can
legislate prospectively it can legislate
retrospectively. The retroactive aspects of
legislation, as well as the prospective aspects, must
meet the test of due process, and the justifications
for the latter may not suffice for the former." But
that burden is met simply by showing that the
retroactive application of the legislation is itself
justified by a rational legislative purpose.
Pension Ben. Guar. Corp., 467 U.S. at 729-30 (citations

omitted).

¶152 Similarly, in Society Insurance we emphasized that,

unlike in cases involving challenges based on the contract

clauses of the federal and state constitutions, "we review a due

process challenge to retroactive legislation under a rational

basis review." Society Ins., 326 Wis. 2d 444, ¶30 n.12

(citation omitted). We made clear: "[R]equiring a showing of a

'significant and legitimate public purpose' in the course of a

due process challenge improperly subjects the retroactive

legislation to a heightened level of scrutiny. Retroactive

legislation must be 'justified by a rational legislative
purpose.'" Id. (citing Pension Ben. Guar. Corp., 467 U.S. at

730).11

¶153 Unfortunately, despite the fact that rational basis

review generally requires only that the law under review be

"rationally related to a legitimate legislative purpose,"

11
As will be discussed below, the Johnson court erroneously
stated that the "significant and legitimate" standard was
applicable to a due process challenge to retroactive
legislation. Johnson, 360 Wis. 2d 350, ¶15.

21
 No. 2015AP179.akz

Carlton, 512 U.S. at 35——a test that can be employed with

minimum worry about judicial subjectivity——a less defensible and

extremely subjective "balancing test" has wormed its way into

our case law. In Matthies, for instance, we stated, "Whether

there exists a rational basis [in retroactive legislation cases]

involves weighing the public interest served by retroactively

applying the statute against the private interest that

retroactive application of the statute would affect." Matthies,

244 Wis. 2d 720, ¶27.

¶154 The validity of this balancing test is questionable,

as becomes apparent when one traces the test's genesis. The

test seemingly appeared in Wisconsin law in our decision in

Martin v. Richards, 192 Wis. 2d 156, 201, 531 N.W.2d 70 (1995).

¶155 The Martin court, in turn, lifted the balancing test

from a First Circuit case, Adams Nursing Home of Williamstown,

Inc. v. Mathews, 548 F.2d 1077 (1st Cir. 1977). Martin, 192

Wis. 2d at 201. Adams Nursing Home was decided prior to

relevant Supreme Court case law on the topic, such as Pension
Benefit, see supra, ¶151, and cited, for its own principle

authority, a then-17-year-old law review article. See Adams

Nursing Home, 548 F.2d at 1080 (citations omitted). The author

of the article states:

[W]hen one considers the great variety of [the Supreme
Court's retroactive legislation] cases, it becomes
clear that no one factor is sufficient to explain the
results which the Court has reached. Rather it is
submitted that the constitutionality of such a statute
is determined by three major factors, each of which
must be weighed in any particular case.

22
 No. 2015AP179.akz

Charles B. Hochman, The Supreme Court and the Constitutionality

of Retroactive Legislation, 73 Harv. L. Rev. 692, 696-97

(1960).12

12
The Adams Nursing Home court also cited, as indirect
authority for its balancing test, Usery v. Turner Elkhorn Mining
Co., 428 U.S. 1 (1976), and S. Terminal Corp. v. E.P.A., 504
F.2d 646, 680 (1st Cir. 1974). Adams Nursing Home of
Williamstown, Inc. v. Mathews, 548 F.2d 1077, 1080-81 (1st Cir.
1977) (citations omitted). Neither provides strong support for
the balancing test currently employed in this court's vested
rights jurisprudence. The discussion in South Terminal cited by
the Adams Nursing Home court, for example, involves a Contracts
Clause challenge. S. Terminal, 504 F.2d at 680. Usery does not
explicitly discuss a balancing test and suggests that
rationality is the important yardstick. See Usery, 428 U.S. at
15, 19 ("It is by now well established that legislative Acts
adjusting the burdens and benefits of economic life come to the
Court with a presumption of constitutionality, and that the
burden is on one complaining of a due process violation to
establish that the legislature has acted in an arbitrary and
irrational way."). In any event, Usery was published prior in
time to Pension Benefit Guaranty Corp. v. R. A. Gray & Co., 467
U.S. 717 (1984).

The Martin court also provided by way of footnote certain
"examples of decisions" using the balancing test, namely Usery,
Chappy v. LIRC, 136 Wis. 2d 172, 192-94, 401 N.W.2d 568 (1987),
and State ex rel. Briggs & Stratton v. Noll, 100 Wis. 2d 650,
656-58, 302 N.W.2d 487 (1981), overruled by Neiman v. American
National Prop. & Cas. Co., 2000 WI 83, 236 Wis. 2d 411, 613
N.W.2d 160, but these latter two cases are no more convincing.
Martin v. Richards, 192 Wis. 2d 156, 201 n.8, 531 N.W.2d 70
(1995) (citations omitted). Chappy applies the rational basis
test and does not discuss any balancing test. See Chappy, 136
Wis. 2d at 192. Noll in fact stated that any retrospective law
that impairs vested rights acquired under prior law is
unconstitutional, and was overruled in that respect by this
court's decision in Neiman. Noll, 100 Wis. 2d at 656, overruled
by Neiman, 236 Wis. 2d 411, ¶14.

(continued)
23
 No. 2015AP179.akz

¶156 That the balancing test used by this court in

retroactive legislation cases has a questionable pedigree might

not be so problematic were it not for the fact that it is

illogical to suggest that a legislative goal is simply

irrational whenever "the private interest that retroactive

application of [a] statute would affect" is adjudged to be

"weigh[tier]"——even if by only a hair——than "the public interest

served by retroactively applying the statute." Matthies, 244

Wis. 2d 720, ¶27. Such a judgment itself recognizes that there

is some (rational) "public interest" served by retroactively

applying the statute. In cases where the public and private

interests are both "weighty," it would be incredibly difficult

to apply the test objectively.

¶157 Simply stated, the proper test to be applied is the

rational basis test. To the extent that the court has

previously engaged in the balancing test to determine whether a

rational basis exists for retroactive application of a statute,

we should recognize that it is really not a balancing test at
all. At most, a statute might be found not to be rationally

Martin's decision to adopt use of a balancing test is
perplexing; it even refers to both Usery and Pension Benefit in
the paragraph immediately preceding its citation to Adams
Nursing Home. As discussed, Pension Benefit (and Usery, for
that matter) makes clear that retroactive application of a
statute need only be "supported by a legitimate legislative
purpose furthered by rational means" to survive due process
challenge. Pension Ben. Guar. Corp., 467 U.S. at 729. Martin
neglected to cite this portion of Pension Benefit. The word
"rational" appears only once in Martin, in an unrelated context.
Martin, 192 Wis. 2d at 173.

24
 No. 2015AP179.akz

based or to be "irrational" pursuant to the court's due process

"balancing test" only if there were virtually no conceivable

public interest served by retroactive application of the

legislation under review. The rational basis test is not

whether, on balance, a private interest outweighs the public

interest. The rational basis test is not simply picking whether

the interests of one group are more important than the other.

Those are legislative determinations that are not subject to

this court's balancing. See, e.g., Smith, 323 Wis. 2d 377, ¶17

(citing Supreme Court's characterization of rational basis

review as "a paradigm of judicial restraint" in FCC v. Beach

Commc'ns, Inc., 508 U.S. 307, 314 (1993)); Flynn v. DOA, 216

Wis. 2d 521, 539, 576 N.W.2d 245 (1998) ("This court has long

held that it is the province of the legislature, not the courts,

to determine public policy."). That is the only way to

reconcile (1) our due process requirement that retroactive

legislation need only be justified by a rational legislative

purpose; with (2) our due process requirement that the public
interest served by retroactive application of a statute outweigh

the private interest affected by retroactive application of a

statute. See Society Ins., 326 Wis. 2d 444, ¶¶30, 53. There

may be an implicit recognition of the relevant analysis not

being a balancing test but instead being a straightforward

application of the rational basis test in certain of our cases.

See, e.g. Martin, 192 Wis. 2d at 211 ("[T]he record reveals

minimal, if any, public interest served by applying the cap on
noneconomic damages retroactively" (emphasis added).); Matthies,

25
 No. 2015AP179.akz

244 Wis. 2d 756, ¶47 ("[T]he substantial impairment of Matthies'

right to recovery significantly outweighs the public interest,

if any, served by retroactive application of [Wis. Stat.]

§ 895.045(1)" (emphasis added).).

¶158 There also seems to be implicit recognition of this

fact in Supreme Court case law. In Pension Benefit, the Supreme

Court acknowledged a four-part test applied by the Seventh

Circuit "for reviewing the constitutionality of retroactive

legislation under the Fifth Amendment's Due Process Clause."

Pension Ben. Guar. Corp., 467 U.S. at 727 & n.6. One part of

that test required consideration of "the equities of imposing

the legislative burdens." Id. at 727. The Court stated,

"We . . . reject the constitutional underpinnings of the

analysis employed by the Court of Appeals . . . , although we

have no occasion to consider whether the factors mentioned by

that court might in some circumstances be relevant in

determining whether retroactive legislation is rational." Id.

at 727 n.6 (emphases added). The Supreme Court thus clarified
that the paramount constitutional question in cases involving

retroactive legislation is the statute's rationality. See also

Pension Ben. Guar. Corp., 467 U.S. at 733 ("[A]lthough we have

noted that retrospective civil legislation may offend due

process if it is 'particularly "harsh and oppressive,"' that

standard does not differ from the prohibition against arbitrary

and irrational legislation that we clearly enunciated in

[Usery]" (citations omitted).).

26
 No. 2015AP179.akz

¶159 It is not as though the Supreme Court has always

categorically ignored consideration of the relative equities in

conducting due process analyses of retroactive legislation.

See, e.g., Usery, 428 U.S. at 18 (discussing plaintiffs'

arguments that retroactive liability would be unfair).

Ultimately, however, any application of a non-constitutional

balancing test must at most be in service of determination of

the question of a statute's rationality. See id. at 19

(rejecting unfairness arguments and stating, "It is enough to

say that the Act approaches the problem of cost spreading

rationally; whether a broader cost-spreading scheme would have

been wiser or more practical under the circumstances is not a

question of constitutional dimension" (citation omitted)

(emphasis added).).

¶160 Thus, while I would not necessarily foreclose

consideration of the relative equities, a mere balancing of the

relative equities is not the test. "Statutes may be invalidated

on due process grounds only under the most egregious of
circumstances." E. Enters. v. Apfel, 524 U.S. 498, 550 (1998)

(Kennedy, J., concurring in the judgment and dissenting in

part). Consequently, to the extent that there is any balancing

employed in the context of retroactive legislation, the question

asked under the rational basis test must be whether "the private

interest that retroactive application of the statute would

affect" is so much "weigh[tier]" than "the public interest

served by retroactively applying the statute," Matthies, 244
Wis. 2d 720, ¶27, that the statute could only be characterized

27
 No. 2015AP179.akz

as "arbitrary or irrational." Smith, 323 Wis. 2d 377, ¶11.

Quite obviously, this "arbitrary or irrational" determination is

likely in only the rarest of cases, where essentially no genuine

public interest can be said to exist. See also The American

Heritage Dictionary of the English Language 94 (3d ed. 1992)

(defining "arbitrary" in part as follows: "1. Determined by

chance, whim, or impulse, and not by necessity, reason, or

principle . . . 2. Based on or subject to individual judgment or

preference.").

¶161 Rationality may seem a low bar. And, indeed, the

Supreme Court has repeatedly determined that it is, in upholding

retroactive legislation against due process challenges. See,

e.g., Pension Ben. Guar. Corp., 467 U.S. at 725 (retroactive

application of statute requiring employers withdrawing from a

multiemployer pension plan to "pay a fixed and certain debt to

the pension plan," such that certain employer withdrawing from

the plan prior to enactment of the statute was liable in amount

of $201,359, held constitutional); Usery, 428 U.S. at 5-6, 14,
19-20 (retroactive application of statute requiring coal mine

operators to compensate miners disabled by black lung disease,

such that certain operators were obligated to compensate miners

who had already left employment prior to enactment of the

statute, held constitutional); Cf. Carlton, 512 U.S. at 28-29,

35 (retroactive application of statute treating earlier, newly-

established estate tax deduction as available only to certain

estates, such that estate which spent $631,000 in order to use

28
 No. 2015AP179.akz

deduction to reduce estate tax by $2,501,161 before enactment of

the statute could not use deduction, held constitutional).

¶162 On the other hand, there is nothing particularly

surprising about the fact that precedent requires that the

constitutional guarantee of "substantive due process" provides

only modest protection in cases not involving fundamental

rights. See, e.g., Flores, 507 U.S. at 302-03. Additionally,

and importantly, to say that the due process clause does not

prohibit application of retroactive legislation does not mean

that such legislation automatically survives attack based on

other constitutional provisions. See, e.g., E. Enters., 524

U.S. at 522, 532-37 (plurality) (retroactive statute effected an

unconstitutional taking in violation of Fifth Amendment Takings

Clause).

IV. EQUAL PROTECTION CHALLENGES TO RETROACTIVE LEGISLATION

¶163 As discussed, a due process challenge to retroactive

legislation is somewhat different than a due process challenge

to prospective legislation. "It does not follow . . . that what
Congress can legislate prospectively it can legislate

retrospectively. The retroactive aspects of legislation, as

well as the prospective aspects, must meet the test of due

process, and the justifications for the latter may not suffice

for the former." Pension Ben. Guar. Corp., 467 U.S. at 730

(citation omitted). In contrast, an equal protection challenge

to retroactive legislation cases seemingly would be remarkably

similar, if not identical to such challenges in cases involving
only prospective legislation: in both types of cases, courts

29
 No. 2015AP179.akz

must examine the legislature's classifications under the

appropriate standard of review. See, e.g., Smith, 323

Wis. 2d 377, ¶¶12-13, 15-17. Thus, in summarizing the various

restrictions that the Constitution places on retroactive

legislation in Bank Markazi, see supra ¶141, the Supreme Court

makes no mention of the Equal Protection Clause of the

Fourteenth Amendment. See Bank Markazi, 136 S. Ct. at 1324-25

(citation omitted). This is likely not because the Equal

Protection Clause provides no protection in this area of law,

but because it provides no special protection in this area of

the law. In both types of cases——those involving prospective

application of a law and those involving retroactive application

of a law——courts must determine whether the legislature has

complied with the "general rule that States must treat like

cases alike but may treat unlike cases accordingly." Vacco v.

Quill, 521 U.S. 793, 799 (1997) (citation omitted).13

¶164 Lands' End argues that application to it of Wis. Stat.

§ 807.01(4) (2013-14) denies it the equal protection of the laws
because it "treat[s] differently, without rational basis, the

class of plaintiffs who commenced actions, made offers of

settlement, and obtained a final judgment prior to the passage

of Act 69 from those obtaining [judgment] after the passage of

Act 69."

13
At the very least, the parties have not suggested that
the equal protection analysis conducted in the context of
retroactive legislation is different than that conducted in the
context of prospective legislation.

30
 No. 2015AP179.akz

¶165 Because Lands' End does not argue that a fundamental

right or suspect class is at issue, rational basis review is the

level of judicial scrutiny applicable to Lands' End's equal

protection challenge to Wis. Stat. § 807.01(4) (2013-14). See

United States v. Sperry Corp., 493 U.S. 52, 65 (1989); State v.

Alger, 2015 WI 3, ¶39, 360 Wis. 2d 193, 858 N.W.2d 346.

Legislation is upheld under rational basis review "unless it is

'patently arbitrary' and bears no rational relationship to a

legitimate government interest." Alger, 360 Wis. 2d 193, ¶39

(citation omitted).

¶166 With the relevant principles and analytical frameworks

in place, I proceed to analyze Lands' End's claims. I note that

my remaining analysis largely tracks the analysis presented in

the lead opinion.

V. WHETHER WIS. STAT. § 807.01(4) (2013-14)
APPLIES RETROACTIVELY
¶167 Wisconsin Stat. § 807.01(4) (2013-14) states:

If there is an offer of settlement by a party
under this section which is not accepted and the party
recovers a judgment which is greater than or equal to
the amount specified in the offer of settlement, the
party is entitled to interest at an annual rate equal
to 1 percent plus the prime rate in effect on January
1 of the year in which the judgment is entered if the
judgment is entered on or before June 30 of that year
or in effect on July 1 of the year in which the
judgment is entered if the judgment is entered after
June 30 of that year, as reported by the federal
reserve board in federal reserve statistical release
H. 15, on the amount recovered from the date of the
offer of settlement until the amount is paid.
Interest under this section is in lieu of interest
computed under ss. 814.04 (4) and 815.05 (8).
Wis. Stat. § 807.01(4) (2013-14).

31
 No. 2015AP179.akz

¶168 Consistent with the above discussion, the first step

in analyzing Lands' End's claims against Wis. Stat. § 807.01(4)

(2013-14) is to determine whether the legislature has "expressly

prescribed the statute's proper reach," because if it has done

so, the statute is applied as written and the presumption

against retroactivity is ignored. Landgraf, 511 U.S. at 280.

As the lead opinion explains, it is simply not clear whether

Wis. Stat. § 807.01(4) (2013-14) applies to conduct preceding

the statute's enactment. Lead op., ¶46.

¶169 2011 Wis. Act 69 does contain an "Initial

Applicability" section, see 2011 Wis. Act 69, § 4, but it is

unhelpful here. The section states, "This act first applies to

an execution on a judgment entered on the effective date of this

subsection." Id. A federal court has interpreted this language

"to mean that the applicable interest rate is determined by the

date judgment is entered." James Michael Leasing Co. v. Paccar,

Inc., No. 11-C-0747, 2013 WL 5771156, at *2 (E.D. Wis. Oct. 24,

2013), aff'd, 772 F.3d 815 (7th Cir. 2014). However, while the
legislature could have written, "This act first applies to a

judgment entered on the effective date of this statute," it did

not do so. Lands' End contends, and the City does not dispute

this fact, that it will never obtain execution on a judgment in

this case. See, e.g., Wis. Stat. § 815.02 (2013-14) ("A

judgment which requires the payment of money or the delivery of

property may be enforced in those respects by execution."). The

effect of the initial applicability section of 2011 Wis. Act 69
on this case is, at best, unclear.

32
 No. 2015AP179.akz

¶170 Further, Wis. Stat. § 807.01(4) (2013-14) itself

contains no indication regarding the "temporal reach" of the

statute. Fernandez-Vargas, 548 U.S. at 37; see Wis. Stat.

§ 807.01(4) (2013-14).

¶171 Thus, Wis. Stat. § 807.01(4) (2013-14) must be

assessed in order to ascertain whether it has retroactive

effect; if it does, the presumption against retroactivity is

applied because the statute does not otherwise indicate its

temporal reach. Landgraf, 511 U.S. at 270. I agree with the

lead opinion that Wis. Stat. § 807.01(4) (2013-14) does not have

retroactive effect. See lead op., ¶82.

¶172 Lands' End argues that application of Wis. Stat.

§ 807.01(4) (2013-14) to it would disturb its vested right. But

both the original and the amended versions of Wis. Stat.

§ 807.01(4) require both an unaccepted offer of settlement and

recovery of a judgment greater than or equal to the amount

specified in the offer of settlement in order for a particular

interest rate to be applied. Lands' End only fulfilled one of
these requirements before the statute was amended.

¶173 At the time that Lands' End made an offer of

settlement to the City, it had no "vested" right to anything——it

had no "immediate fixed right of present or future enjoyment."

See Fernandez-Vargas, 548 U.S. at 44 n.10. It could not have

enforced a claim to 12 percent interest; any court would have

required recovery of a judgment greater than or equal to the

amount contained in the offer of settlement. Lands' End instead
possessed a contingent right. Rights are contingent, as opposed

33
 No. 2015AP179.akz

to vested, "when they are only to come into existence on an

event or condition which may not happen or be performed until

some other event may prevent their vesting." Pearsall, 161 U.S.

at 673 (citation omitted). When Lands' End made an offer of

settlement to the City, it was possible that Lands' End might go

on to recover a judgment. Alternately, it was possible that

"some other event [could] prevent [the] vesting" of its

contingent right to 12 percent interest——for instance, Lands'

End might have lost the case, or the City might have accepted

its settlement offer, or Lands' End might have won the case but

recovered a judgment less than the amount contained in its

earlier offer of settlement. The fact that the legislature

changed the applicable interest rate prior to the vesting of

Lands' End's contingent right might seem unfair, but it is not a

retroactive application of a new law. "[A] statute 'is not made

retroactive merely because it draws upon antecedent facts for

its operation.'" Landgraf, 511 U.S. at 269 n.24.

¶174 The argument that Lands' End's right to a 12 percent
interest rate is vested because that rate was in effect when it

calculated an appropriate offer of settlement ignores the fact

that Lands' End could have factored into its calculation the

possibility that the interest rate might change. Cf. Carlton,

512 U.S. at 34 (stating, in regard to due process challenge to

retroactive tax legislation, "we do not consider respondent

Carlton's lack of notice regarding the 1987 amendment to be

dispositive. . . . [A] taxpayer 'should be regarded as taking
his chances of any increase in the tax burden which might result

34
 No. 2015AP179.akz

from carrying out the established policy of taxation'" (citation

omitted).). Besides, "[a] statute does not operate

'retrospectively' merely because it . . . upsets expectations

based in prior law." Landgraf, 511 U.S. at 269. For instance,

[e]ven uncontroversially prospective statutes may
unsettle expectations and impose burdens on past
conduct: a new property tax or zoning regulation may
upset the reasonable expectations that prompted those
affected to acquire property; a new law banning
gambling harms the person who had begun to construct a
casino before the law's enactment or spent his life
learning to count cards.

Id. at 269 n.24.
¶175 More generally——and apart from the vested rights

question——determining whether a statute has retroactive effect

requires a "commonsense, functional judgment" regarding 'whether

the new provision attaches new legal consequences to events

completed before its enactment.'" Hadix, 527 U.S. at 357-58

(citation omitted). Wisconsin Stat. § 807.01(4) (2013-14) did

not change the legal consequences of any events completed prior

to that statute's enactment. At most, Lands' End can point to

its offer of settlement, but an offer of settlement alone

produces no "legal consequences" (at least, none relevant to the

questions before us). And while Lands' End may have possessed

"expectations" regarding 12 percent interest, they were not

"settled" for the reasons already discussed——Lands' End had not

35
 No. 2015AP179.akz

completed all that Wis. Stat. § 807.01(4) (2009-10) required.

See Landgraf, 511 U.S. at 270.14

¶176 Because Wis. Stat. § 807.01(4) (2013-14) does not

apply retroactively in this case, there is no need to presume

14
Other than arguing that Wis. Stat. § 807.01(4) (2013-14)
impairs a vested right, Lands' End does not develop arguments
that may be read to explain why application of that statute to
it is retroactive. I am hesitant to develop these arguments for
Lands' End. I note that it is doubtful that the amendments to
Wis. Stat. § 807.01(4) could be read to "attac[h] a new
disability, in respect to transactions or considerations already
past" under Justice Story's definition of retroactive laws.
Vartelas v. Holder, 566 U.S. ___, 132 S. Ct. 1479, 1486-87
(2012) (alteration in original) (citation omitted); see supra
¶22. Admittedly, this is a more complicated question than
appears at first glance, especially without briefing. See,
e.g., Vartelas, 132 S. Ct. at 1487 (seemingly suggesting that
severity of the effect of a statutory change affects whether an
outcome "ranks as a 'new disability.'"); id. at 1495 (Scalia,
J., dissenting) ("[T]he 'new disability in respect to past
events' test provides no meaningful guidance. I can imagine
countless laws that . . . impose 'new disabilities' related to
'past events' and yet do not operate retroactively.").

As stated, prior to 2011 Wis. Act 69, only a litigant who
had (among other things) recovered a judgment was entitled to a
12 percent interest rate. Thus, even if a reduced interest rate
might be considered a "new disability," it "attaches" to post-
enactment conduct: the recovery of a judgment following an
earlier, rejected offer of settlement. See id. at 1489-90 & n.7
(law prohibiting persons who have been adjudicated as a mental
defective or who have been committed to a mental institution
from possessing guns does not operate retroactively, as the law
addresses a danger arising post-enactment, namely "mentally
unstable persons purchasing guns"). 2011 Wis. Act 69 did not
attach a disability to pre-enactment conduct, namely offers of
settlement, because these offers did not entitle the offeror to
any specific interest rate. It would be difficult to see why a
contrary conclusion would not require a determination that 2011
Wis. Act 69 also attached a "new disability" to those who had
merely filed lawsuits prior to the law's enactment, which is as
much of a prerequisite for fulfillment of Wis. Stat. § 807.01(4)
(2013-14) as making an offer of settlement.

36
 No. 2015AP179.akz

that it applies prospectively——it does apply prospectively.15

Lands' End never recovered a judgment prior to the enactment of

Wis. Stat. § 807.01(4) (2013-14) and was thus never entitled to

12 percent interest on such a judgment.

VI. WHETHER APPLICATION OF WIS. STAT. § 807.01(4) (2013-14)
VIOLATES LANDS' END'S RIGHT TO DUE PROCESS OF LAW
¶177 As stated, Wis. Stat. § 807.01(4) (2013-14) does not

apply retroactively and does not impair a vested right possessed

by Lands' End. Lands' End rested its due process claim on the

presence of an impaired vested right. Indeed, it does not

explain how, in the absence of a vested right, it is being

"deprive[d] of life, liberty, or property, without due process

of law." U.S. Const. amend. XIV, § 1. Thus, I need not assess

its due process claim further. See lead op., ¶82.16

VII. WHETHER APPLICATION OF WIS. STAT. § 807.01(4) (2013-14)
DENIES LANDS' END THE EQUAL PROTECTION OF THE LAWS

15
The Johnson court concluded otherwise. See, e.g.,
Johnson, 360 Wis. 2d 350, ¶27. As explained, I concur in the
lead opinion's decision to overrule Johnson.
16
In conducting its due process analysis, the Johnson court
erroneously stated that "[i]f retroactive legislation causes
'substantial impairment of a vested right,' it is
unconstitutional unless justified by a significant and
legitimate public interest." Johnson, 360 Wis. 2d 250, ¶15
(citation omitted). As discussed above, in Society Insurance v.
Labor & Industry Review Comm'n, 2010 WI 68, 326 Wis. 2d 444, 786
N.W.2d 385, we explained: "[R]equiring a showing of a
'significant and legitimate public purpose' in the course of a
due process challenge [to retroactive legislation] improperly
subjects the retroactive legislation to a heightened level of
scrutiny. Retroactive legislation must be 'justified by a
rational legislative purpose.'" Society Ins., 326 Wis. 2d 444,
¶30 n.12.

37
 No. 2015AP179.akz

¶178 Lands' End does not argue that a fundamental right or

suspect class is at issue, so rational basis applies to Lands'

End's equal protection challenge to Wis. Stat. § 807.01(4)

(2013-14). See Sperry Corp., 493 U.S. at 65; Alger, 360

Wis. 2d 193, ¶39. Legislation is upheld under rational basis

review "unless it is 'patently arbitrary' and bears no rational

relationship to a legitimate government interest." Alger, 360

Wis. 2d 193, ¶39.

¶179 The classification identified by Lands' End is

rational. The legislature needed to determine a cut-off point

for application of the old 12 percent interest rate. "[The

legislature] could have rationally concluded that only those who

are successful [in their litigation] realize a benefit therefrom

sufficient to justify" prevention of application of the new

interest rate. Cf. Sperry Corp., 493 U.S. at 54, 65 (statute

requiring "Federal Reserve Bank of New York to deduct and pay

into the United States Treasury a percentage of any award made

by the Iran–United States Claims Tribunal in favor of an
American claimant before remitting the award to the claimant"

did not violate equal protection by assessing a fee only against

claimants who actually received an award, and not against all

claimants). In other words, the legislature may have thought,

reasonably, that those who had already obtained a judgment prior

to passage of 2011 Wis. Act 69 had a greater claim to the 12

percent interest rate than did those who had simply made an

offer but not obtained a judgment. Application of the new
interest rate to the former group might have been viewed as

38
 No. 2015AP179.akz

significantly more inequitable than application of the new

interest rate to the latter group, since the latter group was

still fully engaged in litigation with no guarantee of success.

¶180 Moreover,

[t]he problem of legislative classification is a
perennial one, admitting of no doctrinaire definition.
Evils in the same field may be of different dimensions
and proportions, requiring different remedies. Or so
the legislature may think. Or the reform may take one
step at a time, addressing itself to the phase of the
problem which seems most acute to the legislative
mind. The legislature may select one phase of one
field and apply a remedy there, neglecting the others.
Williamson v. Lee Optical of Okla., 348 U.S. 483, 489 (1955)

(citations omitted). Perhaps the legislature, viewing 12

percent interest as a windfall and thus an "evil," wished to

restrict its continued application, if at all, to only a small

class of pending cases, and thought that application of 12

percent interest to all cases in which there had been offers of

settlement, as opposed to cases in which there had been both

offers of settlement and adequately-sized judgment awards, would

have unduly expanded that class.

¶181 It was not irrational——and thus not unconstitutional——

for the legislature to draw its legislative line at parties who

had actually obtained judgments greater than or equal to the

amount specified in their earlier, rejected offers of

39
 No. 2015AP179.akz

settlement, instead of at parties who had simply made offers of

settlement.17

VIII. WHETHER APPLICATION OF WIS. STAT. § 807.01(4) (2013-14)
VIOLATES WIS. STAT. § 990.04 (2013-14)
¶182 Finally, Lands' End argues that application to it of

the amendments to Wis. Stat. § 807.01(4) violates Wis. Stat.

§ 990.04 (2013-14). The portion of the statute cited by Lands'

End provides:

The repeal of a statute hereafter shall not remit,
defeat or impair any civil or criminal liability for
offenses committed, penalties or forfeitures incurred
or rights of action accrued under such statute before
the repeal thereof, whether or not in course of
prosecution or action at the time of such repeal; but
all such offenses, penalties, forfeitures and rights
of action created by or founded on such statute,
liability wherefore shall have been incurred before
the time of such repeal thereof, shall be preserved
and remain in force notwithstanding such repeal,
unless specially and expressly remitted, abrogated or
done away with by the repealing statute.

Wis. Stat. § 990.04 (2013-14).

17
I do not apply the complicated five-factor equal
protection test cited by Lands' End. See, e.g., Metro. Assocs.
v. City of Milwaukee, 2011 WI 20, ¶64, 332 Wis. 2d 85, 796
N.W.2d 717. Though perhaps a useful tool in certain contexts,
the overriding concern in equal protection cases not involving
fundamental rights or suspect classes is whether the
classification drawn by the legislature "has a rational basis,"
that is, whether "there is a rational relationship between the
disparity of treatment and some legitimate governmental
purpose." Armour v. Indianapolis, Ind., 566 U.S. ___, 132 S.
Ct. 2073, 2079-80 (2012) (citation omitted); see also, e.g.,
State v. Alger, 2015 WI 3, ¶39, 360 Wis. 2d 193, 858 N.W.2d 346.
This test is well-established. See Armour, 132 S. Ct. at 2080.
Such a rational basis is clearly present here, and proceeding
through a five-factor test to confirm that fact is unnecessary.

40
 No. 2015AP179.akz

¶183 Lands' End does not make clear to which of the

categories specified in Wis. Stat. § 990.04 (2013-14) it

believes the operation of Wis. Stat. § 807.01(4) (2009-10)

belongs. As discussed above, however, Lands' End never

fulfilled the requirements of § 807.01(4) (2009-10) before it

was amended. Thus no liability, penalties, or forfeitures were

incurred and no rights of action accrued before § 807.01(4)

(2009-10) was repealed. At least with regard to the brief and

undeveloped arguments made by Lands' End on this point, § 990.04

(2013-14) presents no impediment in this case.18

IX. CONCLUSION

¶184 The legislature has broad authority to enact laws,

including laws that apply retroactively. These laws are

entitled to a presumption of constitutionality; the legislature,

like this court, interprets the constitution and attempts to

follow it. In passing 2011 Wis. Act 69 and amending Wis. Stat.

§ 807.01(4) (2009-10), the legislature reduced an interest rate

18
At common law, "the repeal of a penal statute eliminated
prosecution for past acts. The so-called abatement doctrine
provided that repeal, even repeal by amendment, and even by
amendment reducing the penalty, would require dismissal of the
indictment under the earlier criminal statute." Antonin Scalia
& Bryan A. Garner, Reading Law 264 (2012). Scalia and Garner
note that this doctrine "has been regarded (perhaps erroneously)
as an exception" to the presumption against retroactivity. Id.
However, "[t]he United States and almost all the states have
adopted saving statutes designed to eliminate the doctrine and
to permit continued prosecution under the prior law." Id. The
federal version of these savings statutes, at least according to
Scalia and Garner, is found at 1 U.S.C. § 109 (id. at 264-65),
and is somewhat similar in phrasing to Wis. Stat. § 990.04
(2013-14).

41
 No. 2015AP179.akz

applicable to certain types of judgments. Lands' End recovered

one of these judgments, but only after the relevant legislation

had been enacted. Wisconsin Stat. § 807.01(4) (2013-14) does

not have retroactive effect on Lands' End, even though it

applies in the current case. Nor does Lands' End possess a

vested right in the earlier interest rate.

¶185 No fundamental rights or suspect classes are involved

in this case and the amendments made to Wis. Stat. § 807.01(4)

pass the minimal test of rationality required by the

constitutional guarantee of equal protection of the laws.

Finally, Wis. Stat. § 990.04 (2013-14) does not bar application

of Wis. Stat. § 807.01(4) (2013-14) to Lands' End.

Consequently, the decision of the circuit court should be

affirmed.

¶186 For the foregoing reasons, I respectfully concur.

42
 No. 2015AP179.dtp

¶187 DAVID T. PROSSER, J. (dissenting). For more than

150 years, the Wisconsin Legislature has sought to promote

pretrial settlement and hold down costs in civil litigation.

¶188 The state's early statutes permitted a defendant to

offer the plaintiff a specific judgment against the defendant.

If the plaintiff accepted the offer and filed the appropriate

papers, the plaintiff could have judgment against the defendant

almost immediately. If the plaintiff declined the offer,

however, and then failed to recover "a more favorable judgment,"

the plaintiff was required to pay the defendant's costs from the

time of the offer. See, e.g., Wis. Stat. § 2789 (1878); Chi. &

Nw. Ry. Co. v. Groh, 85 Wis. 641, 648, 55 N.W. 714 (1893).

¶189 In the 1970s the legislature strengthened the hand of

plaintiffs in civil litigation. Wisconsin Stat. § 269.02(3)

(1973) provided:

(3) Settlement. After issue is joined but at
least 20 days before trial, the plaintiff may serve
upon the defendant a written offer of settlement for
the sum, or property, or to the effect therein
specified, with costs. If the defendant accepts the
offer and serves notice thereof in writing, before
trial and within 10 days after receipt of the offer or
within 40 days after service of the notice of trial,
whichever is later, he may file the offer, with proof
of service of the notice of acceptance, with the clerk
of court. If notice of acceptance is not given, the
offer cannot be given as evidence nor mentioned on the
trial. If the offer of settlement is not accepted and
the plaintiff recovers a more favorable judgment, he
shall recover double the amount of the taxable costs.
(Emphasis added.)

1
 No. 2015AP179.dtp

¶190 In 1980 the legislature added a tough provision on

prejudgment interest when either party declined to accept an

offer of settlement from the other party:

807.01(4) If there is an offer of settlement by
the party under this section which is not accepted and
the party recovers a judgment which is greater than or
equal to the amount specified in the offer of
settlement, the party is entitled to interest at the
rate of 12% per annum on the amount recovered from the
date of the offer of settlement until the amount is
paid. Interest under this section is in lieu of
interest computed under ss. 814.04(4) and 815.05(8).
See § 2, ch. 271, Laws of 1979. The 12 percent interest rate in

Wis. Stat. § 807.01(4) was adopted at the same time the

legislature increased interest rates from 7 percent to 12

percent per annum on a verdict and on execution upon judgment.

See §§ 3-4, ch. 271, Laws of 1979, amending Wis. Stat.

§§ 814.04(4) and 815.05(8).1

¶191 The language adopted in 1980 was the language in place

on July 1, 2009, when Lands' End made an offer of settlement to

the City of Dodgeville on the tax refund that Lands' End was

seeking from the City's property tax assessment for 2008.

¶192 The issue presented in this case is whether the above-

referenced language is applicable to Lands' End's claim, or

whether new language adopted in 2011 nullified the effect of the

older language for Lands' End.

1
Section 5 of Chapter 271 read: "Applicability. The
treatment or creation of sections 807.01(4), 814.04(4) and
815.05(8) of the statutes apply only to actions commenced on or
after the effective date of this act." This provision made the
interest increases entirely prospective.

2
 No. 2015AP179.dtp

I

¶193 This case is part of nearly a decade of continuous

litigation between Lands' End and the City of Dodgeville over

property tax assessments on six parcels of the corporation's

land in the City. Much of the history is detailed in Lands'

End's brief and in the record.

¶194 In 2005 the City of Dodgeville assessed the six

parcels of land at $39,964,600 and imposed a tax of

$1,169,665.73, which Lands' End paid under protest.

¶195 In 2006 the City assessed the six parcels at

$47,332,300 and imposed a tax of $1,348,540.60, which Lands' End

paid under protest.

¶196 Lands' End's claims for refunds of its alleged

overpayments for 2005 and 2006 led to an 11-day trial before

Iowa County Circuit Judge Edward E. Leineweber. On May 29,

2009, Judge Leineweber issued a 16-page memorandum decision

concluding that the fair market value of Lands' End's property

was $25,000,000 in both 2005 and 2006. After considering
various additional submissions, the court filed detailed

findings of fact, conclusions of law, and judgment on September

1, 2009.

¶197 Lands' End also challenged the City's 2007 assessment

and tax and its 2008 assessment and tax, which were based on the

same appraisal for the City that Judge Leineweber pointedly

criticized in his May 29, 2009 memorandum decision.

¶198 On July 1, 2009, Lands' End made its offer of
settlement on the requested tax refund for 2008. This offer was

3
 No. 2015AP179.dtp

made before the City appealed the September 1 judgment but after

it had lost on the 2005 and 2006 assessments in the memorandum

decision. Lands' End did not invoke Wis. Stat. § 807.01(4)

until it responded to the 2008 property tax assessment.

¶199 On May 27, 2010, the court of appeals affirmed the

decision of the circuit court on the 2005 and 2006 tax refunds.

This court denied a petition for review on April 21, 2011.

Consequently, Lands' End had a judgment, affirmed on appeal,

about the invalidity of the City's 2005 and 2006 assessments 18

months before the legislature revised Wis. Stat. § 807.01(4).

¶200 Admittedly, the judgment applied to the 2005 and 2006

property tax assessments, not the 2008 assessment. However, the

City upped the assessment in 2008 to $56,423,100, which the

Board of Review reduced to $54,000,000 because of acknowledged

errors. Upping the assessment to $54,000,000 for 2008 was

unrealistic on its face because the City was relying on the same

appraisal used in 2005 for property that had not changed.

¶201 This case is complicated by the timing of various
court decisions. For example, in the 2008 case, Iowa County

Circuit Judge William Dyke denied Lands' End's motion for

summary judgment about five weeks before the court of appeals

affirmed Judge Leineweber's September 1, 2009 judgment. His

ruling was not reversed until September 12, 2013——a decision in

which the court of appeals remanded the case to the circuit

court "for entry of judgment in favor of Lands' End in the

4
 No. 2015AP179.dtp

amount of $724,292.68, plus statutory interest and any other

interest or costs to which Lands' End may be entitled."2

¶202 Ultimately, the City of Dodgeville had to refund

substantial tax overpayments to Lands' End for 2005, 2006, 2007,

and 2008. The City had to pay interest on all these refunds.

The issue here is whether the City of Dodgeville is required to

pay 12 percent per annum interest on the $724,292.68 refund on

the 2008 taxes——from the date of Lands' End's offer of

settlement (July 1, 2009) until the amount is paid.

II

¶203 The bill that created Wis. Stat. § 807.01(4) in 1980

was authored by State Senator William Bablitch, who soon

thereafter became a member of this court. In 1999 Justice

Bablitch had the opportunity to explain that the purpose of Wis.

Stat. § 807.01 is "to encourage settlement and accordingly,

secure just, speedy and inexpensive determinations of disputes."

Prosser v. Leuck, 225 Wis. 2d 126, 140, 592 N.W.2d 178 (1999)

(citing Schmidt v. Schmidt, 212 Wis. 2d 405, 412-13, 569
N.W.2d 74 (Ct. App. 1997); White v. Gen. Cas. Co. of Wis., 118

Wis. 2d 433, 438, 348 N.W.2d 614 (Ct. App. 1984)).

¶204 Previously, the court of appeals had asserted that

"[t]he purpose of imposing costs and interest under subsecs. (3)

and (4) [of § 807.01] is punitive." Blank v. USAA Prop. & Cas.

Ins. Co., 200 Wis. 2d 270, 279, 546 N.W.2d 512 (Ct. App. 1996)

2
Curiously, the court of appeals did not decide Lands'
End's 2007 tax refund claim until May 8, 2014.

5
 No. 2015AP179.dtp

(citing Gorman v. Wausau Ins. Cos., 175 Wis. 2d 320, 329, 499

N.W.2d 245 (Ct. App. 1993)).

¶205 Whether the purpose of double costs and 12 percent

interest for parties who reject offers of settlement is truly

"punitive" is open to debate. But this court has said:

The risk of being assessed the penalty of double costs
under § 807.01(3) encourages parties to seriously
assess their chances of winning a coverage or
liability dispute. The party who rejects a settlement
offer and forges ahead with litigation does so with
the full knowledge of § 807.01(3) [and (4)] and that
if not successful, they may be subject to double costs
under § 807.01(3) [and 12 percent interest "from the
date of the offer of settlement until the amount is
paid"].
Prosser, 225 Wis. 2d at 147 (emphasis added).

III

¶206 To determine whether Wis. Stat. § 807.01(4) is still

applicable to the partial refund of Lands' End's 2008 property

tax, we must engage in statutory interpretation, applying the

principles in State ex rel. Kalal v. Circuit Court for Dane

County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110.
¶207 In 2008, Wis. Stat. § 807.01 was entitled "Settlement

offers." It had five subsections. Subsection (3) contained the

provision in which "the plaintiff shall recover double the

amount of taxable costs." Subsection (4) read:

If there is an offer of settlement by a party
under this section which is not accepted and the party
recovers a judgment which is greater than or equal to
the amount specified in the offer of settlement, the
party is entitled to interest at the annual rate of
12% on the amount recovered from the date of the offer
of settlement until the amount is paid. Interest
under this section is in lieu of interest computed
under ss. 814.04(4) and 815.05(8).
6
 No. 2015AP179.dtp

Wis. Stat. § 807.01(4) (2007-08).

¶208 Subsection (5) read: "Subsections (1) to (4) apply to

offers which may be made by any party to any other party who

demands a judgment or setoff against the offering party." Wis.

Stat. § 807.01(5) (2007-08).

¶209 Three conditions must exist under Wis. Stat.

§ 807.01(4) (2007-08) for a party to qualify for 12 percent

interest per annum "on the amount recovered." First, the party

makes "an offer of settlement" to another party "under this

section." Second, the "offer of settlement" "is not accepted"

by the other party "within 10 days after receipt of the offer."3

Third, the offering party recovers "a judgment which is greater

than or equal to the amount specified in the offer of

settlement."

¶210 If these three conditions are satisfied "the party is

entitled to interest at the annual rate of 12% on the amount

recovered from the date of the offer of settlement until the

amount is paid." These conditions and consequences are examined
in turn.

A

¶211 Subsections (1), (2), and (3) of Wis. Stat. § 807.01

refer to "a written offer of settlement." These written offers

of settlement are "served" on the other party. The party making

an offer of settlement must "do so in clear and unambiguous

3
The time limit is referenced in the three preceding
subsections of the statute. See Wis. Stat. §§ 807.01(1), (2),
and (3).

7
 No. 2015AP179.dtp

terms," Ritt v. Dental Care Associates, S.C., 199 Wis. 2d 48,

76, 543 N.W.2d 852 (Ct. App. 1995), so that the offeree may

"fully and fairly evaluate the offer from his or her own

independent perspective," id. at 75 (citing Testa v. Farmers

Ins. Exch., 164 Wis. 2d 296, 302, 474 N.W.2d 776 (Ct. App.

1991)).

¶212 There is no dispute that this condition was satisfied

by Lands' End.

B

¶213 There also is no dispute that Lands' End's offer of

settlement was not accepted. The City opposed Lands' End's

motion for summary judgment, and the case was litigated for

several years.

C

¶214 Finally, Lands' End recovered a judgment against the

City of Dodgeville after winning the 2013 appeal. Moreover,

subsection (4) applied to offers made by any party to any other

party who demands a judgment or setoff against the offering
party. Wis. Stat. § 807.01(5). Lands' End demanded a judgment

and ultimately received a judgment. The statute in 2009 and

2010 imposed no timing requirement for the judgment.

Consequently, Lands' End satisfied every condition in the

statute.

¶215 If a party satisfies all three conditions, "the party

is entitled to interest at the annual rate of 12% on the amount

recovered from the date of the offer of settlement until the
amount is paid." (Emphasis added.)

8
 No. 2015AP179.dtp

¶216 The words of a statute have meaning. To say that a

party is "entitled" to something means that the party has been

granted a legal right to or qualifies for that thing. See

Entitle, Black's Law Dictionary 649 (10th ed. 2014); see also

id. (defining "entitlement" as an "absolute right to a (usu.

Monetary) benefit, such as social security, granted immediately

upon meeting a legal requirement"); The American Heritage

Dictionary of the English Language 615 (3d ed. 1992) ("To

furnish with a right or claim to something . . . ."). Two cases

by the Supreme Court of the United States in recent decades also

defined "entitled" in terms of qualifying for a right or

benefit, and both cases cited to an earlier edition of Black's

in their analyses. See Ingalls Shipbuilding, Inc. v. Director,

Office of Worker's Comp. Programs, 519 U.S. 248, 255-56 (1997)

("[T]he ordinary meaning of the word 'entitle' indicates that

the 'person entitled to compensation' [in 33 U.S.C. § 933(g)(1)]

must at the very least be qualified to receive compensation.");

Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477
(1992) ("Both in legal and general usage, the normal meaning of

entitlement includes a right or benefit for which a person

qualifies, and it does not depend upon whether the right has

been acknowledged or adjudicated. It means only that the person

satisfies the prerequisites attached to the right."); see also

Entitle, Black's Law Dictionary 532 (6th ed. 1990) ("To qualify

for; to furnish with proper grounds for seeking or claiming.").

¶217 The "right" created by the statute was recognized
implicitly in Gorman, 175 Wis. 2d at 329, where the court said:

9
 No. 2015AP179.dtp

"Nothing in sec. 807.01, Stats., requires a party to file a

motion in order to recover costs. Rather, this statute mandates

the court to impose costs and interest when the defendant

rejects a valid offer of settlement and the plaintiff recovers a

greater judgment." (Emphasis added.) The Prosser court stated

that "the plain language [of the statute] provides that interest

accrues throughout the litigation." Prosser, 225 Wis. 2d at

152.

¶218 Wisconsin Stat. § 807.01(4) then specifies what "the

party" is "entitled" to——namely, (1) "interest at the annual

rate of 12%," (2) "on the amount recovered," and (3) "from the

date of the offer of settlement until the amount is paid."

Subsection (4) of § 807.01 is different from a statute that

employs a broad term like "compensation." Subsection (4) is

very specific in directing that it is interest at a stated rate

and for a stated period of time to which a prevailing party is

entitled. In Upthegrove Hardware, Inc. v. Pennsylvania

Lumbermans Insurance Co., 152 Wis. 2d 7, 13, 447 N.W.2d 367
(Ct. App. 1989), the court of appeals summed up the law when it

said that the prevailing party "is seen as having 'recovered'

the amount awarded in the judgment on the date of the settlement

offer." (Emphasis added.)

IV

¶219 In the 1980 legislation, two statutes, Wis. Stat.

§§ 814.04(4) and 815.05(8), were amended to increase the rate of

interest from 7 percent to 12 percent. Ch. 271, Laws of 1979.
Statutory interest rates needed to be raised at that time so

10
 No. 2015AP179.dtp

that parties did not have an incentive to delay payment. The 12

percent interest rate included in Wis. Stat. § 807.01(4)

corresponded with the other changes. The legislature made clear

that the change in rates was prospective when it said that "the

statutes apply only to actions commenced on or after the

effective date of this act."

¶220 Over the next 30-plus years, interest rates fell, but

the 12 percent rate in the statutes was preserved because it

supported the objective of the statutes to encourage pretrial

settlement and prompt payment of judgments. When interest rates

in the three statutes were reduced in 2011, the country had

historically low interest rates and adjustments may have

appeared necessary. But there is no evidence that the

legislature intended to undermine the basic objectives of Wis.

Stat. § 807.01(4).

¶221 In her dissenting opinion in Prosser v. Leuck, Justice

Ann Walsh Bradley observed:

There can be little doubt that Wis. Stat.
§ 807.01 exists to encourage parties to settle their
cases rather than take them to trial. Beacon Bowl,
Inc. v. Wisconsin Elec. Power Co., 176 Wis. 2d 740,
501 N.W.2d 788 (1993); DeMars v. LaPour, 123
Wis. 2d 366, 373, 366 N.W.2d 891 (1985). To the
extent that § 807.01 forces parties to carefully
analyze their realistic chances of liability or
recovery and reevaluate the merits of taking their
case to trial, the statute serves an important
purpose. Settlement is to be encouraged rather than
discouraged in the law.
Prosser, 225 Wis. 2d at 155 (Ann Walsh Bradley, J., dissenting).

¶222 In 2009, Wis. Stat. § 807.01(4) gave notice to all
litigants that its provisions would affect conduct that had not

11
 No. 2015AP179.dtp

yet occurred. Therefore, the party to whom an offer of

settlement was made had notice of the consequences that would

follow if a judgment in a greater amount were recovered.

¶223 Conversely, parties who made statutory offers of

settlement relied on the entitlement created by the statute.

Wisconsin Stat. § 801.01 created clear expectations that

reasonable people could and did rely on as they proceeded in

litigation.

¶224 Retroactive application of the 2011 changes in the law

undermines the entitlement to 12 percent interest set out in the

statute. It creates an incentive to extend litigation and

thereby delay payment. The City is effectively being rewarded

for overtaxing Lands' End and for stringing out the litigation

that followed.4 It should be noted that Lands' End would have

been required to pay 1 percent interest every month, plus

potential penalties, if it had not timely paid the 2008 tax and

if it had not eventually succeeded in court. Wis. Stat.

§ 74.47. It is hard to believe the legislature intended the
inequitable result of retroactively changing the interest rates

for offers of settlement made long before the statutory changes

4
In S.A. Healy Co. v. Milwaukee Metropolitan Sewerage
District, 60 F.3d 305, 308 (7th Cir. 1995), Judge Posner
skillfully analyzed one problem that Wis. Stat. § 807.01(4)
sought to address: "[D]elay in accepting the plaintiff's demand
allows the defendant to earn interest on money that (it is
subsequently determined) should really be the plaintiff's. The
award of interest from the date of the settlement demand
deprives the defendant of this incentive to reject rightful
demands."

12
 No. 2015AP179.dtp

but not changing the rate for taxpayers who owe additional

property taxes.

¶225 These considerations are the foundation of the court

of appeals decision in Johnson v. Cintas Corp. No. 2, 2015 WI

App 14, 360 Wis. 2d 350, 860 N.W.2d 515, which concluded that

the retroactive application of the 2011 changes was

unconstitutional. I agree with the court's comprehensive, well-

written opinion and would affirm its determination.5 In

overruling the Johnson case and affirming the circuit court's

ruling in the present case, this court is likely undermining the

reasonable expectations of multiple other parties who made

offers of settlement in conformity with the statute.

V

¶226 Although I fully support the court of appeals'

decision in Johnson, the lead opinion in this case makes it

5
Johnson v. Cintas Corp. No. 2, 2015 WI App 14, 360
Wis. 2d 350, 860 N.W.2d 515, is consistent with court decisions
in other states. See, e.g., Dubois v. State Farm Ins. Co., 571
So. 2d 201, 207 (La. Ct. App. 1990) (concluding that amendment
to statutory interest rate was "substantive law" that "applie[d]
only to recovery in accidents occurring after its passage"),
approved by Socorro v. City of New Orleans, 579 So. 2d 931, 944
(La. 1991); Herring v. Golden State. Mut. Life Ins. Co., 318
N.W.2d 641, 646 (Mich. Ct. App. 1982) (applying statute amending
interest rate was improper where "the action was filed over a
year prior to the effective date of the statute" and "the
controversy arose before the statute was enacted").

For further insights regarding jurisdictions that decline
to give retroactive effect to changes in interest rates, see
generally Diane M. Allen, Annotation, Retrospective Application
and Effect of State Statute or Rule Allowing Interest or
Changing Rate of Interest on Judgments or Verdicts, 41 A.L.R.
4th 694, §§7, 11 (1985 & Supp. June 2015).

13
 No. 2015AP179.dtp

necessary to address the lead opinion's conclusion that Lands'

End was required to obtain a legally enforceable "judgment"

before the 2011 change in the law. The lead opinion states:

Lands' End did not acquire a legally enforceable right
to recover interest until it recovered a
judgment. . . . Changing the interest rate in Wis.
Stat. § 807.01(4) simply alter[ed] the legal
consequence of events not yet completed. Before
Lands' End recovered a judgment, its right to interest
was inchoate.
Lead op., ¶72. This holding penalizes Lands' End not only

because it abandons the governing principles of the statute but

also because it rests on the timing of the circuit court's

mistaken ruling on summary judgment.

¶227 Clearly, Lands' End should have received a favorable

judgment on its 2008 assessment before the amendment to Wis.

Stat. § 807.01(4) in December 2011. Unfortunately, the actual

judgment did not come until after the circuit court's decision

was reversed. However, before the circuit court's mistaken

ruling, Lands' End had been successful in other litigation

against the City on the same property. The legal foundation had
already been built for Lands' End's eventual success on its

suits on the 2008 assessment as well as the 2007 assessment.

The Iowa County Circuit Court had already determined that the

City's assessments for 2005 and 2006 were incorrect, and the

City had conceded that there was no material change in the value

of the property between 2006 and 2008. See Lands' End, Inc. v.

City of Dodgeville, No. 2010AP1185, unpublished slip op., ¶23

(Wis. Ct. App. Sept. 12, 2013); see also Lands Ends, Inc. v.

14
 No. 2015AP179.dtp

City of Dodgeville, Nos. 2013AP1490, 2013AP1491, and 2013AP1492,

unpublished slip op., ¶17 (Wis. Ct. App. May 8, 2014).6

¶228 The lead opinion concludes that Lands' End's right to

the 12 percent interest rate was "contingent on a subsequent

determination by a court." Lead op., ¶77. But the lead opinion

forces Lands' End to bear the burden of the right court making

the wrong determination at a critical time. Had the same court

6
As explained by the court of appeals,

[T]he City argues that issue preclusion does not apply
in this case . . . . [T]he flaw in the City's issue
preclusion argument is that the City miscasts the
"issue" to which issue preclusion applies. The
"issue" is not the proper 2008 assessed value of
Lands' End's property. Rather, we determine here that
issue preclusion applied only to the "issue" of the
correct 2006 assessment. The resolution of that issue
through the application of issue preclusion does not,
by itself, establish the proper 2008 assessed value.
Rather, it is the combination of issue preclusion and
a new undisputed fact in the present case that
persuades us that Lands' End is entitled to summary
judgment. The new undisputed fact is that the value
of the subject property did not materially change
between 2006 and 2008.

. . . .

Giving preclusive effect to Judge Leineweber's
finding that the 2006 value of the property was
$25,000,000, and combining that finding with the
undisputed fact in this case that the value of the
property essentially stayed the same, leads us to
conclude that the value of the property in 2008 must
be $25,000,000. Because there is no genuine dispute
that the 2008 value of the property is $25,000,000, we
conclude that Lands' End is entitled to judgment as a
matter of law.

Lands' End, Inc. v. City of Dodgeville, No. 2010AP1185,
unpublished slip op., ¶¶10, 29 (Wis. Ct. App. Sept. 12, 2013).

15
 No. 2015AP179.dtp

decided the case six weeks later, the result would have been

different.

¶229 For the foregoing reasons, I respectfully dissent.

¶230 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK joins this dissent.

16
 No. 2015AP179.dtp

1