Wisconsin Lawyer
Vol. 83, No. 4, April 2010

Tips for Using Residential Offer to Purchase Forms

Use of the new residential offer to purchase form, approved for mandatory use by real estate licensees, became effective March 1. Forms for other types of real estate transactions will follow in due course. This is a process that has been repeated periodically for years. Its basic purposes are to provide real estate broker and salesperson licensees with state-approved forms allowing them a limited right to practice law under the Dinger case and to give all others who are involved in these transactions a “safe” form containing recognized terms and format.

In attempting to use the new form, I found it cumbersome and disjointed. In saying this, I do not fault the Wisconsin Department of Regulation & Licensing Forms Committee, whose members, and others, spent untold pro bono hours hashing out its provisions. I have been in that position myself. I know most of the committee members personally and respect them for their dedication, competence, and generosity in accepting this difficult assignment. There are certain structural aspects of the process, which do not need to be enumerated for my purposes, that appear to have caused the problems I encountered.

The new forms are not, in my estimation, as usable and user friendly as earlier forms. This is not to say the earlier forms achieved or even approximated perfection. (I confess to being the author of several provisions in earlier forms that did not work as I had thought they might.)

The new forms are mandatory for use by real estate licensees only. I would suggest that attorneys, who can draft their own contracts, consider continuing to use the 1999 edition of the forms, which I believe are easier to use, understand, and explain. The offer for purchase should note that the drafter is an attorney. To keep the forms as universally acceptable as they have been, any additions to or deletions from the standard wording should be clearly identified. The forms have been the familiar contractual tool used throughout the industry and should continue to be acceptable to those who deal with them.

Most of the substantive provisions of the new forms are the same as the old. Any form must be used knowledgeably and to the extent the attorney, exercising his or her legal expertise, finds a provision obsolete, substantively deficient, or in need of correction or updating, this can be done relatively easily in the blanks on the form or by addendum.

Wm. Pharis Horton, Madison

No Sympathy for Factually Guilty Defendants

As a career prosecutor, I wanted to respond to “Exonorees’ Hardships After Freedom,” in the February 2010 Wisconsin Lawyer. While there is no question that innocent defendants who are wrongly convicted should be fairly compensated for time spent in prison, defendants who are actually guilty should not receive taxpayer money upon their release.

In the article, the authors paint sympathetic portraits of people who had their convictions reversed as a result of legal errors or new evidence. Noticeably absent from this list is Steven Avery (the Innocence Project’s most famous “exonoree”). Certainly those individuals mentioned in the article who were actually innocent (and didn’t later commit a brutal murder) deserve our sympathy. The fact remains, however, that some of these people may actually be guilty.

Factually guilty defendants do not deserve sympathy. If, for example, Mr. Piaskowski (whose five codefendants are still serving life sentences for killing Thomas Monfils) and Mr. Zimmerman actually committed the murders they were convicted of, any sympathy should go to the murder victims’ families, who had to witness the real killers of their loved ones escape justice. The current law requiring exonorees to establish their innocence to receive compensation strikes the proper balance. Otherwise one can envision scenarios where murderers and child molesters receive money because their convictions were reversed for reasons other than actual innocence. Rewarding these so-called “wrongfully convicted” individuals would be a slap in the face to crime victims and their families.

I also take issue with the authors’ support of proposals drastically restricting public access to CCAP records. As a prosecutor, I have had to dismiss (or lost at trial) numerous domestic abuse cases because the victims recanted. The defendants in these cases were nevertheless clearly guilty. As domestic violence approaches record levels in our state, is now really the time to take away a valuable tool women can use to protect themselves from potential abusers? How about a sex predator who was acquitted because the jury chose not to believe a small child? Shouldn’t parents be able to obtain this type of information so they can protect their own children?

I would support the sealing of CCAP records when defendants can establish their actual innocence. Measures that would completely eviscerate the public’s right to know, like Assembly Bill 340 (where one of the authors misrepresented the number of complaints he had received about CCAP), go too far, however, and would endanger the public safety. If someone had advised Teresa Halbach to run a CCAP check on Mr. Avery, she might be alive today.

While the subject of wrongful convictions has received a lot of attention and rightly so, there has been little discussion of wrongful acquittals, which, in my experience, occur much more frequently. Rarely do we hear about cases that were lost at trial or dismissed due to witness intimidation, uncooperative domestic abuse victims, poor police work, or (I am sorry to say) ineffective prosecutors. Where do crime victims go to receive their compensation for failures in the criminal justice system?

Gerald Urbik, Janesville

Response: We appreciate Mr. Urbik’s concern for the plight of wrongly convicted innocent people and his concern that compensation only be paid to people who are actually innocent. No one would disagree with either point. The article did not focus on those points, however, but on the inadequacy of the compensation available, the cumbersome nature of the procedures for obtaining compensation, and the onerous burdens imposed on innocent individuals seeking compensation. Mr. Urbik offers no rationale for why individuals who claim to have been wrongly convicted by the state should face a higher burden of proof than most if not all other individuals seeking redress for wrongs they claim they have suffered. Moreover, to continue to assert that men like Mike Piaskowski or Evan Zimmerman might still be guilty – when the criminal justice system has determined them to be not guilty – adds insult to injury, with no legal justification.

We also want to clarify one point. Mr. Urbik’s letter includes a reference to “Assembly Bill 340 (where one of the authors misrepresented the number of complaints he had received about CCAP).” We are certain that Mr. Urbik meant to say that the authors of the bill misrepresented the number of complaints received about CCAP, not the authors of the article. Because the reference might be misunderstood, we wanted to make it clear that we, the authors of the article, had nothing to do with drafting Assembly Bill 340 and made no representations about the number of complaints received about CCAP.

Mary C. Delaney, Keith A. Findley & Sheila Sullivan  

Wisconsin Lawyer