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,
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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
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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
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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
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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
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¶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
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¶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
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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
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¶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
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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.)
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¶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
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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
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(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).
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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).
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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.)
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¶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:
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"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
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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
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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."
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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).
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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.
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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).
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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.
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