Keller v. Kraft

FINE, J.

¶ 13. 0dissenting). Although I agree that § 3-23 of the Milwaukee City Charter is not an ordinance within the meaning of Wis. Stat. § 102.03(2), I respectfully dissent for two reasons. First, in my view, the institutional interest that finality attend judicial proceedings is not, in this case, overcome by interests of fairness. Second, I do not believe that we have the power to overrule our earlier decision in this case.

I.

¶ 14. I agree with the Majority that § 3-23 of the Milwaukee City Charter is not a City of Milwaukee *795ordinance for the reasons ably expressed in the Majority opinion and, also, because § 925-6a of the Statutes of 1921, reprinted as § 4-02 of the Milwaukee City Charter, specifically says so:

No city of the first class.. . shall hereafter in any manner be deemed to be operating under the provisions of Sections 925-2 to 925-294, both inclusive, unless said city shall specifically elect to come under the said sections in the manner prescribed by Sections 925-2 to 925-6, inclusive, or unless any of said sections shall contain an express provision declaring it to be applicable to cities operating under special charter, provided, however, that the term "all cities" in the general charter statute shall not be deemed to be such an express provision.

As the Majority points out, § 3-23 of the Milwaukee City Charter is merely a reprinting of § 925-269m of the Statutes of 1919, and is of general applicability:

No officer of any city, no matter how organized, shall be required to file an undertaking, or any other bond required on appeal in any court when such party has been sued in his official capacity, except in actions of quo warranto or any other kind of action involving directly the title to his office, nor shall any city officer be liable for any costs or damages, but costs or damages, if any, shall be awarded against the city.

Accordingly, by express direction of the legislature, the City of Milwaukee (a "1st class" city, Wis. Stat. § 62.05(1)(a)) is not bound by § 925-269m because it did not "specifically elect to come under" the provision.

II.

¶ 15. As the Majority notes, after we issued our earlier opinion in this case, Keller v. Kraft, 2003 WI App 212, 267 Wis. 2d 444, 671 N.W.2d 361, the City sought *796reconsideration from us, which we denied. It then brought another motion for summary judgment before the trial court, making the argument it makes on this appeal. The trial court denied the City's motions, essentially saying that the City had its chance during the first go-round and dropped the ball, and that it would have to live with the result. I agree.

A.

¶ 16. A trial court presented with a motion for reconsideration must balance the dual interests of "finality and fairness." Teubel v. Prime Dev., Inc., 2002 WI App 26, ¶ 19, 249 Wis. 2d 743, 755, 641 N.W.2d 461, 466. Although Wisconsin abandoned in 1929 its previously long-standing view that the law-of-the-case precluded re-examination of an allegedly erroneous legal analysis, there must be "cogent, substantial, and proper reasons," for taking a second look. McGovern v. Eckhart, 200 Wis. 64, 72-78, 277 N.W. 300, 303-305 (1929). Thus, although we must always have our eyes on the elusive goal of justice, "a motion for reconsideration is not a vehicle for making new arguments or submitting new evidentiary materials." Lynch v. Crossroads Counseling Ctr., Inc., 2004 WI App 114, ¶ 23, 275 Wis. 2d 171, 187, 684 N.W.2d 141, 148. The only reason asserted by the City for not originally making the argument it makes now is that it did what the Majority calls "additional research," Majority, ¶ 5, after our earlier decision, which was issued after oral argument. In my view, "additional research" is not the kind of showing that must be made before the law-of-the-case will give way to a re-analysis, especially by a governmental litigant, which should know the arcana under which it operates. Any other rule guts needed finality. Moreover, we hold *797defendants in criminal cases to that standard, State v. Lo, 2003 WI 107, ¶¶ 2-4, 14-49, 264 Wis. 2d 1, 4-5, 8-24, 665 N.W.2d 756, 757-758, 758-767 (" 'we need finality in our litigation'") (quoted source omitted), even if they are pro se, see State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 576 N.W.2d 84 (Ct. App. 1998) (challenge to revocation of parole), and I see no reason to be more lax with civil litigants. So, for that reason, I would affirm the trial court's denial of the City's second motion for summary judgment.

B.

¶ 17. There is a second reason why, in my view, we must affirm. We held in Keller that § 3-23 of the Milwaukee City Charter was an "ordinance" as that word is used in Wis. Stat. § 102.03(2). Keller, 2003 WI App 212, ¶¶ 6, 18, 267 Wis. 2d at 448-449, 454, 671 N.W.2d at 363, 366. The Majority overrules that holding. We may not overrule a published decision of our court, even one that this panel issued less than two years earlier. See Cook v. Cook, 208 Wis. 2d 166, 189-190, 560 N.W.2d 246, 256 (1997).

¶ 18. I would affirm and thus respectfully dissent.