League of Women Voters v. Madison Community Foundation

DYKMAN, J.

¶ 20. (dissenting). The majority has concluded that persons who do not like the effect of a statute can agree to disregard it, with the expectation that a court will support their decision. I conclude otherwise. The legislature is entitled to make rules which govern an array of subjects, with the expectation that courts will uphold those rules. Here, the question is the effect of Wis. Stat. § 701.10(2)(b) (2003 — 04),1 which governs the administrative provisions of Wisconsin charitable trusts. The statute provides:

If any administrative provision of a charitable trust or part of a plan set forth by the settlor to achieve the settlor's charitable purpose is or becomes impractical, unlawful, inconvenient or undesirable, and a modification of such provision or plan will enable the trustee to achieve more effectively the basic charitable purpose, the court may by appropriate order modify the provision or plan.

¶ 21. The statute does not conclude with: "Nothing in this section shall prevent modification of a charitable trust pursuant to its terms." More on that later.

*141¶ 22. The majority sums up its decision in two sentences:

Nothing in the text of Wis. Stat. § 701.10(2)(b) suggests that it overrides the provisions of a trust. Simply put, if a trust instrument provides a specified procedure for altering administrative provisions of the trust, there is no reason to suppose the legislature intended that § 701.10(2) (b) he used to override such a procedure.

Majority, ¶ 7.

¶ 23. The majority has turned statutory construction on its head. A statute means what it says. Statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). Wisconsin Stat. § 701.10(2)(b) permits a court, not the parties, to modify a charitable trust provision or plan. The majority does not explain how it transforms the words "the court" into the words "the Board of Governors." But that is how the majority has amended the statute.

¶ 24. Kalal also tells us:

Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.

Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 25. Wisconsin Stat. Ch. 701 is entitled "Trusts." Wisconsin Stat. § 701.12 is a closely related section to Wis. Stat. § 701.10(2)(b), and deals with revocation, modification and termination of trusts with the consent *142of the settlor. The legislature must have been aware that some trusts contain provisions for revocation, modification or termination within the trust itself, for it provided in § 701.12(3): "Nothing in this section shall prevent revocation, modification or termination of a trust pursuant to its terms or otherwise in accordance with law."

¶ 26. There is nothing like Wis. Stat. § 701.12 in Wis. Stat. § 701.10, which sets out the rules for charitable trusts. The legislature could have permitted charitable trusts to modify their administrative provisions by a provision to that effect in the trust. But it did not. To me, this is hardly accidental, or a drafting glitch.

¶ 27. The legislature is wary of charitable trusts. These trusts are given tax benefits, and often use other people's money to achieve the settlor's designs. The potential for scams exists. So, unlike provisions for other trusts, those for charitable trusts contain a requirement that in a proceeding affecting a charitable trust, notice must be given to the attorney general. Wis. Stat. § 701.10(3) (b). This legislative concern is also exhibited in § 701.10(2) (b), where the power to modify an administrative provision of a charitable trust is given to the court, without a word about the trust's provisions for modification. My conclusion is that the legislature knowingly required charitable trusts to obtain a court order to modify the trust's administrative provisions.

¶ 28. We examined a conflict between a statute and a charitable trust provision in Weinberger v. Bowen, 2000 WI App 264, 240 Wis. 2d 55, 622 N.W.2d 471. There, the situation was reversed. The charitable trust provision prohibited altering, amending or modifying *143the trust. Wisconsin Stat. § 701.12 authorized the sett-lor and all beneficiaries of a trust to revoke, modify or terminate the trust.

¶ 29. Using the reasoning the majority here uses, one would expect that in 'Weinberger, we would have held that the terms of the charitable trust trumped the statute. But that is not what we did. We said: "We agree with the circuit court's holding that Wis. Stat. § 701.12(1) clearly and unambiguously allows for the revocation, modification or termination of a trust upon the written consent of the settlor and all the trust beneficiaries." Weinberger, 240 Wis. 2d 55, ¶ 11. Were I to write a majority opinion here, I would use much the same language. I would say: "We agree with Judge Bartell's conclusion that Wis. Stat. § 701.10(2)(b) clearly and unambiguously permits the circuit court and only the circuit court to modify the Foundation trust's administrative provisions."2 But I am not writing a majority opinion. I therefore respectfully dissent.

All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

Judge Bartell was originally assigned this case, but re-cused herself midway in the case. Prior to her recusal, she had concluded: "[T]he standards set forth in § 701.10(2)(b), Stats., apply to this court as it considers whether to grant approval to the amendment to the Trust Agreement as requested by the [Foundation]."