City of Janesville v. CC Midwest, Inc.

ANN WALSH BRADLEY, J.

¶ 65. (concurring). I agree with that part of the opinion that constitutes the majority opinion: the City of Janesville must identify one or more properties that meet the parameters of Wis. Stat. § 32.19(2)(c) to serve as a comparable replacement business. The record demonstrates that the City has done so here. I write separately, however, as I cannot join that part of the opinion that constitutes only a lead opinion because it reaches out and unnecessarily discusses and decides a constitutional issue that was not advanced by either of the parties.11 believe that it is unwise for this court to sua sponte raise and decide constitutional issues without the benefit of briefs and arguments. Because the lead opinion's constitutional discussion leaves lingering questions, I respectfully concur.

¶ 66. It is not the role of this court to sua sponte resurrect and decide abandoned constitutional arguments. CC Midwest affirmatively abandoned its consti*641tutional argument in this court. It stated that it seeks "only to be protected to the extent guaranteed by the relocations law."2

¶ 67. As I see it, the courts play a passive role in our system of government. Unlike the legislative or the executive branch of government which have as their regular fare the responsibility to raise and resolve the issues of the day, our role is to respond to the issues presented. This is true in all areas of the law, but especially true when it comes to constitutional issues. The wisdom of such restraint is apparent.

¶ 68. The rule of law is generally best developed when issues are raised by the parties and then tested by the fire of adversarial briefs and oral arguments. Indeed, "[t]he fundamental premise of the adversary process is that these advocates will uncover and present more useful information and arguments to the decision maker than would be developed by a judicial officer acting on his own in an inquisitorial system." Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions By Appellate Courts, 69 Tenn. L. Rev. 245, 247 (2002), citing United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring).

*642¶ 69. Nevertheless, the lead opinion launches its constitutional analysis. It revisits our conclusion in Luber, where we discussed the interests of an owner of property and concluded that "under property concepts one's interest in rental income is such as to deserve compensation under the 'just compensation' provision of the Wisconsin Constitution." Luber v. Milwaukee County, 47 Wis. 2d 271, 279, 177 N.W.2d 380 (1970). Lead op., ¶ 17. Furthering its constitutional analysis, the lead opinion notes that this court in Rotter limited the holding of Luber to the statutory twelve-month limit for rental income losses, but warned that "payment and time limits set forth in sec. 32.19 may encounter constitutional difficulties." Rotter v. Milwaukee County Expressway & Transp. Comm'n, 72 Wis. 2d 553, 562-63, 241 N.W.2d 440 (1976). Lead op. ¶ 17 n. 16.

¶ 70. Citing Hasselblad v. City of Green Bay, 145 Wis. 2d 439, 442, 427 N.W.2d 140 (Ct. App. 1988), the lead opinion observes that in a subsequent examination, the court of appeals concluded that Luber did not "constitutionally mandate unlimited recovery for all consequential damages in eminent domain actions." It explains that in Hasselblad the court of appeals held "that Wis. Stat. § 32.19(4m), setting a $50,000 limit on business replacement damages for owner-occupied businesses, was not unconstitutional.. .." Id. at 440-41. Lead op., ¶ 18.

¶ 71. Ultimately, the lead opinion concludes its constitutional analysis with the determination that "the relocation assistance benefits provided by Wis. Stat. § 32.19(3) and (4m) do not have a direct relationship to the fair market value of a tenant's interest, and therefore, are incidental or consequential damages that are *643not considered in the constitutional requirement for just compensation." Lead op., ¶ 21.

¶ 72. The lead opinion's constitutional analysis leaves lingering questions about the nature of just compensation that were not presented or advanced for purposes of this review. The text of the analysis leaves the reader wondering:

• Is the lead opinion expanding the holding in Hasselblad?
The lead opinion describes the holding in Hasselblad as follows: "In Hasselblad, the court of appeals determined that Wis. Stat. § 32.19(4m), setting a $50,000 limit on business replacement damages for owner-occupied businesses, was not unconstitutional. . .." Lead op., ¶ 18. Yet, the lead opinion's holding goes beyond the statute relied upon in Hasselblad. It appears to extend the holding to a different statute, Wis. Stat. 32.19(3). The opinion concludes that neither the relocation assistance benefits provided for in Wis. Stat. § 32.19(3) nor the benefits in § 32.19(4m) are constitutionally mandated. Lead op., ¶ 21.
• Are the interests of a tenant different than the interests of an owner for purposes of the' lead opinion's constitutional analysis?
The cases primarily relied upon by the lead opinion in its constitutional discussion, Luber, Rotter, and Hasselblad, are cases involving the interests of owners of property. Midwest is a tenant, not an owner.3
*644• As a threshold matter, does the record even support embarking on a constitutional "takings" analysis?
It is unclear whether the record supports that Midwest, as a tenant, had any legally protected leasehold interest in continued occupancy of the property that could be a "taking."

¶ 73. This court in Rotter warned that "payment and time limits set forth in sec. 32.19 may encounter constitutional difficulties." Rotter, 72 Wis. 2d at 562-63. Here, without prompting or argument, the lead opinion lifts Wis. Stat. § 32.19(3) and (4m) from the clouds of constitutional difficulty contemplated by this court in Rotter. Perhaps the lead opinion is correct in its constitutional conclusions. Without argument and briefs I am unsure. However, there is one thing about which I am sure: the rule of law is best developed when issues are raised by the parties and then tested by the fire of adversarial argument.

¶ 74. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this concurrence.

As noted in footnote 10 of the majority/lead opinion, only three justices join the discussion of the constitutional issues. Therefore, that portion constitutes only a lead opinion and not an opinion of the majority of the court.

The lead opinion proffers excuses for its reaching out and asserts that "before the court of appeals, CC Midwest argued its claim had a constitutional foundation ...." Lead op., ¶ 15 n. 13. The court of appeals, however, did not address the constitutional takings issue. There was no cross-petition or brief filed by CC Midwest on the takings issue. The City of Janesville did preemptively discuss the constitutional issue in its brief because as the petitioner it had to file its brief first. However, CC Midwest did not respond to the issue. Such proffered excuses in reality provide no excuse at all. The opinion simply ignores the fact that CC Midwest affirmatively abandoned its constitutional argument in this court.

In its constitutional analysis, the lead opinion cites to only one case that concerns the right of a tenant to just compensation. In United States v. Petty Motor Co., 327 U.S. 372 (1946), the United States Supreme Court determined that when the gov*644ernment took over temporary use of a building for a period beginning in 1942 and ending in 1945 with a right to surrender in 1943 or 1944 on 60 days notice, that relocation and incidental expenses were not admissible for the purpose of determining the market value of the tenants' leaseholds. Id. at 377-78. In this case, there is no question presented about the market value of the leasehold of CC Midwest. Rather, the issue presented is solely whether the City of Janesville complied with its statutory requirement of making available comparable rental properties.