HSBC Realty Credit Corp. v. City of Glendale

FINE, J.

¶ 31. (dissenting). In my view, by misreading the clear language of Wis. Stat. § 59.40(3), Milwaukee County seeks to hijack funds that Wis. Stat. § 32.05(7)(d) says belongs to others. The Majority agrees with Milwaukee County. I respectfully dissent.

¶ 32. As the Majority recognizes, Wis. Stat. § 32.05(7)(d), which is applicable to this case, provides, as material here, that a condemnor's check "for the amount of the award" (less deductions not relevant here) shall either be sent to the property owners "or be deposited with the clerk of the circuit court of the county for the benefit of the persons named in the award."1 (Emphasis added.) As the Majority also notes, Wis. Stat. § 59.40(3) sets the general rule as to how money deposited with the clerk of circuit court is handled. It reads:

CleRK of COURT; fees; investment of funds, (a) The clerk of the circuit court shall collect the fees that are prescribed in ss. 814.60 to 814.63. The clerk may refuse to accept any paper for filing or recording until the fee prescribed in subch. II of ch. 814 or any applicable statute is paid.
(b) Except as provided in par. (c), the clerk may invest any funds that are paid into his or her office and are being held for repayment. The investments shall be made in suitably protected accounts in the manner *513specified in s. 66.0603 (lm) and all income that may accrue shall be paid into the county general fund.
(c) A judge may direct that par. (b) does not apply to certain funds paid into the office. The judge's authority applies only to funds relating to cases before his or her court.

(Emphasis added.) Section 59.40(3) (b) has three parts. It:

(1) empowers the Clerk to "invest" funds paid into his or her office;
(2) limits the scope of the Clerk's investment strategy; and, also,
(3) says that investment income goes to the "county general fund."

But, these grants of authority are specifically limited by subparagraph (c), which permits the judge to direct, with respect "to funds relating to cases before his or her court," that subparagraph (b) not apply. Subparagraph (c) encompasses, in haec verba, the entirety of subpara-graph (b), and, as material here, thus specifically permits the trial judge to direct that income from funds relating to cases pending in his or her court not be paid into the county's general fund, but, rather, as required here by § 32.05(7)(d), be held "for the benefit of the persons named in the award."2 That is the nub of what the trial judge did in this case, and I would affirm.

The full statute as material to this appeal is set out in footnote two of the Majority opinion.

Thus, I do not understand why the Respondents spent so many pages of their appellate brief on a wide-ranging, irrelevant, confusing, and essentially self-defeating excursion into the limitless landscape of "inherent authority."