Vol. 77, No. 7, July 2004

Supreme Court Digest

by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer

Attorneys

Lawyer-client Privilege - Waiver

Harold Sampson Children's Trust v. The Linda Gale Sampson 1979 Trust, 2004 WI 57 (filed 25 May 2004)

During discovery, the clients' former attorney turned over documents to the opposing party that their current lawyer asserted were confidential. The documents had been prepared by a plaintiff for use by her attorney and expressed her version of the facts and thoughts on strategy. Current counsel demanded that the privileged documents be returned. The circuit court appointed a referee who determined that the documents were indeed privileged and that the clients had not consented to their production. Based on the referee's findings of fact, the circuit court ruled that the attorney could not waive the privilege, which belonged to the clients, and that the clients had not consented to waiver of the privilege. The court of appeals reversed on the theory that the attorney acted as the clients' agent and that his disclosure sufficed to waive the privilege.

The supreme court, in an opinion authored by Chief Justice Abrahamson, reversed the court of appeals. It held that only the client may waive the attorney-client privilege under Wis. Stat. section (Rule) 905.11; thus, "a lawyer without the consent or knowledge of a client, cannot waive the attorney-client privilege by voluntarily producing privileged documents (which the attorney does not recognize as privileged)"

(¶ 4). Although several prior cases had addressed the issue of "inadvertent" waivers, they were inapposite because here "the attorney intended to release the documents in issue" (¶ 28). His "only mistake" related to the documents' privileged status. Under section 905.03(2) as well as section 905.11(3), "the client holds and controls the attorney-client privilege and only the client can waive it" (¶ 32). Moreover, pertinent case law supports the conclusion that only the client, not the lawyer, may waive the privilege (¶ 33).

Finally, "[t]he policies that supported imputing an attorney's conduct to the client [in prior case law] do not support imputing to a client an attorney's voluntary disclosure of attorney-client privileged documents in a case like the one at bar" (¶ 39). Acknowledging the impracticality of "unring[ing] the bell," the supreme court nonetheless held that the only remedy available was the return of the documents and the prohibition of their use by the opposing party (¶ 48).

Constitutional Law

Gaming Compact - Separation of Powers

Panzer v. Doyle, 2004 WI 52 (filed 13 May 2004)

The petitioners, a group of legislators, filed this original action in the supreme court. They claimed that the governor had exceeded his authority when he agreed to various amendments to an Indian gaming compact. More specifically, the petitioners asserted that the governor improperly 1) expanded the scope of gaming by adding games that were previously unlawful; 2) extended the duration of the compact to the point that it became "perpetual"; 3) committed the state to future appropriations; and 4) waived the state's sovereign immunity (¶ 3).

In its much publicized decision, written by Justice Prosser, the supreme court held that the governor had exceeded his authority "when he agreed unilaterally to a compact term that permanently removes the subject of Indian gaming from the legislature's ability to establish policy and make law." It further held that "the Governor acted contrary to the public policy embodied in state law and therefore acted without authority by agreeing to allow the [tribe] to conduct new games that are prohibited by [the Wisconsin Constitution and criminal law]" (¶ 5). Finally, "the Governor exceeded his authority by agreeing to waive the state's sovereign immunity, an act which he had no inherent or delegated power to undertake"(¶ 5). Although the opinion carries enormous public policy implications, space limitations do not permit a more detailed exegesis of the court's lengthy analysis and ruling.

Chief Justice Abrahamson, joined by Justices Bradley and Crooks, dissented in a lengthy opinion that plumbs the practical implications of the majority's decision while underscoring its analytical shortcomings.

Criminal Procedure

Exculpatory Evidence - Failure of State to Disclose Material Impeachment Evidence Prior to Defendant's Guilty Plea - Manifest Injustice

State v. Harris, 2004 WI 64 (filed 8 June 2004)

This case involved a failure by the state to disclose material exculpatory impeachment evidence before the defendant's entry of a guilty plea despite a defense demand for exculpatory evidence. The circuit court found that the defendant would not have entered a guilty plea if the evidence had been disclosed, and the court permitted him to withdraw his plea. In a published decision the court of appeals affirmed the circuit court. See 2003 WI App 144.

In a decision authored by Justice Wilcox, the supreme court affirmed the court of appeals. It held that the state did not violate the defendant's right to due process because, pursuant to the U.S. Supreme Court decision in United States v. Ruiz, 536 U.S. 622 (2002), due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain. [In a footnote the court noted that its decision is limited to material exculpatory impeachment evidence. "We do not determine whether due process requires the disclosure of purely exculpatory information prior to a plea bargain" (¶ 23 n. 15).]

However, the court concluded that the nondisclosure violated Wis. Stat. section 971.23(1)(h), which requires that, upon demand, the district attorney shall disclose "any exculpatory evidence" within a reasonable time before trial. The nondisclosed evidence in this case was of the type that should have been turned over pursuant to the statute, because it was favorable to the defendant (it was impeachment evidence that cast doubt on the credibility of the state's primary witnesses), and the nondisclosure undermined the court's confidence in the judicial proceeding because the defendant would not have pled guilty but for the nondisclosure.

"We further hold that in order to comply with the mandate in § 971.23(1) that such information must be turned over within a reasonable time before trial, the State was obligated to disclose this evidence at a point when [the defendant] would have had sufficient time to make effective use of the information. As [he] entered his plea bargain within two weeks prior to the date his trial was scheduled to commence, the State should have disclosed the suppressed evidence by at least this point in the proceedings in order for [the defendant] to be able to effectively use it. Given that 1) the [nondisclosed] evidence ... was the type of evidence required to be disclosed under

§ 971.23(1)(h); 2) the State did not disclose this evidence within a reasonable time before trial; and 3) [the defendant] would not have pled guilty but for this nondisclosure, [the defendant] has demonstrated that a withdrawal of his plea is necessary to avoid a manifest injustice" (¶ 40).

Justice Wilcox also authored a separate concurring opinion. Justice Sykes did not participate in this decision.

Criminal Procedure/Statutory Interpretation

Judicial Review of Decision Not to Prosecute - Wis. Stat. section 968.02(3) Statutory Interpretation - Use of Extrinsic Aids to Interpret Statutes - Legislative History

State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58 (filed 25 May 2004)

The legal context of this case is Wis. Stat. section 968.02(3), which provides that "if a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe the person to be charged committed an offense." The narrow issue before the supreme court involved the meaning of the term "refuses" in the statute.

In a majority opinion authored by Justice Sykes, the court concluded that "[t]o 'refuse' is to indicate unwillingness to do a thing. As the term is commonly understood, a 'refusal' involves a decision to reject a certain choice or course of action. A 'refusal,' however, need not necessarily be expressed in particular or explicit terms to be understood as a refusal. A district attorney's refusal to issue a complaint for purposes of Wis. Stat. § 968.02(3) may be established directly or circumstantially. We therefore reject the [petitioners'] argument that only a direct and unequivocal statement from the district attorney - e.g., 'I refuse to issue a complaint' - can satisfy the statute" (¶¶ 7-8).

The court concluded that because section 968.02(3) specifies an ex parte procedure, a defendant named in a complaint issued pursuant to the statute cannot challenge the judge's decision by way of a motion for reconsideration. See ¶ 21. Further, "to the extent that a circuit judge's decision to permit the filing of a complaint under Wis. Stat. § 968.02(3) is legally or factually unsupported, the defendant named in the complaint may seek its dismissal in the circuit court after it has been filed, and may pursue standard appellate remedies thereafter. But the statutory prerequisite that the judge find a refusal to prosecute by the district attorney does not impose upon the circuit judge a plain, clear, non-discretionary, and imperative duty of the sort [that would be required for the issuance of a supervisory writ by an appellate court]" (¶ 25).

This decision is of particular significance in view of its language dealing with techniques of statutory interpretation. The court concluded that "the general framework for statutory interpretation in Wisconsin requires some clarification. It is, of course, a solemn obligation of the judiciary to faithfully give effect to the laws enacted by the legislature, and to do so requires a determination of statutory meaning. Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature's intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect" (¶ 44).

The court has repeatedly held that statutory interpretation begins with the language of the statute. If the meaning of the statute is plain, the inquiry ordinarily stops. However, if a statute is ambiguous, the cases have often stated that the reviewing court turns to the scope, history, context, and purpose of the statute. But in this decision the court characterized this common formulation as "somewhat misleading: scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute as long as the scope, context, and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history" (¶ 48).

What is clear, said the court, "is that Wisconsin courts ordinarily do not consult extrinsic sources of statutory interpretation unless the language of the statute is ambiguous. By 'extrinsic sources' we mean interpretive resources outside the statutory text - typically items of legislative history ... We have repeatedly emphasized that traditionally, resort to legislative history is not appropriate in the absence of a finding of ambiguity. This rule generally prevents courts from tapping legislative history to show that an unambiguous statute is ambiguous. That is, the rule prevents the use of extrinsic sources of interpretation to vary or contradict the plain meaning of a statute, ascertained by application of the foregoing principles of interpretation. Thus, as a general matter, legislative history need not be and is not consulted except to resolve an ambiguity in the statutory language, although legislative history is sometimes consulted to confirm or verify a plain-meaning interpretation" (¶¶ 50-51) (citations and internal quotes omitted). In a footnote the court stated its intent to "refocus the primary statutory interpretation inquiry on intrinsic, textual sources of statutory meaning and reiterate the rule that extrinsic sources of interpretation are generally not consulted unless there is a need to resolve an ambiguity in the statutory language" (¶ 49 n.8).

Chief Justice Abrahamson and Justice Bradley filed separate concurring opinions.

Sentencing - Correction of Sentencing Errors to Achieve Original Purpose of Sentence

State v. Gruetzmacher, 2004 WI 55 (filed 18 May 2004)

The defendant was convicted of numerous offenses. At the sentencing hearing on Feb. 19, 2002, the court clearly articulated that it believed that 40 months of confinement was the minimum necessary confinement for this defendant. For one of the crimes the court sentenced the defendant to 40 months of confinement followed by 20 months of extended supervision. A variety of less severe dispositions was given for the other crimes.

Later that day the court realized that 24 months was the maximum confinement time for the offense for which it had imposed 40 months of confinement. The court then attempted to contact counsel and schedule another hearing. The parties could not reconvene until two days later and ultimately the court held a resentencing hearing on March 5, 2002. In the meantime the court had entered a temporary stay with respect to all sentences so that the defendant would not be sent to prison.

At the resentencing hearing the court sentenced the defendant to the maximum 24 months of confinement on the crime for which 40 months had been erroneously ordered. It also increased the sentence on another charge from 12 years probation to 40 months confinement (plus 20 months of extended supervision) with the sentences to run concurrently. Among the issues on appeal was whether a Wisconsin circuit court that makes a mistake in sentencing may correct obvious errors when the sentencing judge made a good faith mistake during sentencing, promptly recognized the error, and, although he increased a sentence on one count and reduced punishment on another count, achieved what the court originally intended.

In a unanimous decision authored by Justice Crooks, the supreme court concluded that "the circuit court acted appropriately in notifying the parties and holding another hearing two days later and resentencing [the defendant] two weeks later, in March, 2002, in order to correct a sentencing error. As is evidenced by the statements made during sentencing, the circuit court clearly intended to sentence [the defendant] to 40 months initial confinement. [The defendant] did not have an expectation of finality at his initial sentencing, because of the prompt actions of the court, so the sentence could be modified to correct the sentencing error" (¶ 2).

The court declined the state's invitation to overrule State v. North, 91 Wis. 2d 507, 283 N.W.2d 457 (Ct. App. 1979). "Nevertheless, we withdraw the per se rule language in North that states that modification to correct sentencing errors is contrary to the double jeopardy provisions when the court seeks to increase a sentence already being served. We emphasize that the remainder of North remains intact, and is to be read with the factors set forth in State v. Jones, 2002 WI App 208, 257 Wis.2d 163, 650 N.W.2d 844" (¶ 3).

In Jones, the court of appeals noted that Wisconsin courts have long recognized expectation of finality in a sentence as a key consideration in determining whether there has been a violation of double jeopardy. Said the court in Jones, "we, therefore, adhere to the tenet that the analytical touchstone for double jeopardy is the defendant's legitimate expectation of finality in the sentence, which may be influenced by many factors, such as the completion of the sentence, the passage of time, the pendency of an appeal, or the defendant's misconduct in obtaining sentence." 2002 WI App 208, ¶ 10.

In this case the circuit court clearly intended to sentence the defendant to 40 months of initial confinement. It discovered the sentencing error the same day, and the parties would have reconvened that day if the judge did not have other assignments outside the county. Instead the court notified the parties and everyone was back in court two days later to address the matter. The defendant was kept in the county jail until resentencing and was not sent to prison in the meantime.

"The fact that the justice system as a whole had not yet begun to act upon the circuit court's sentence is an important fact that bears emphasis. Moreover, this was not a case where, upon mere reflection, the circuit court decided to increase [the defendant's] sentence. [The] sentence was not increased, and the circuit court merely corrected its mistake, so that [the defendant] could serve the intended 40-month sentence. Given the abovementioned considerations, we conclude that [the defendant] did not have a legitimate expectation of finality when sentenced in February, 2002" (¶ 38).

Justice Sykes did not participate in this decision.

Resentencing - Judicial Vindictiveness

State v. Naydihor, 2004 WI 43 (filed 15 April 2004)

The defendant entered a guilty plea on a charge of causing injury by the intoxicated use of a vehicle. The circuit court sentenced him to three years in prison and five years of extended supervision. In postconviction proceedings the defendant claimed that the prosecutor had breached the plea agreement during the state's sentencing argument. The circuit court granted the defendant's motion and it ordered resentencing in the case before a different judge. The second judge imposed a sentence of five years' confinement and five years of extended supervision, justifying the increased sentence on the ground that the victim's condition had deteriorated since the original sentencing and her medical bills had substantially increased.

The defendant appealed. Among other things, he contended that the increased sentence violated due process because it was the product of judicial vindictiveness. The court of appeals affirmed, concluding that the resentencing court was entitled to consider the victim's deteriorated condition in resentencing the defendant and therefore that the increased sentence was not a product of judicial vindictiveness. See 2002 WI App 272.

In a unanimous decision authored by Justice Wilcox, the supreme court affirmed the court of appeals. It rejected the defendant's contention that his increased sentence created a presumption of judicial vindictiveness that was never rebutted. The defendant's argument was based on North Carolina v. Pearce, 395 U.S. 711 (1969), in which the U.S. Supreme Court concluded that due process prohibited a defendant from being given a harsher sentence at resentencing because of vindictiveness for having successfully attacked his or her first conviction. [Note: Subsequent cases have interpreted Pearce as applying a presumption of vindictiveness that may be overcome only by a showing of objective information in the record justifying the increased sentence. When the presumption is inapplicable, a defendant must demonstrate actual vindictiveness in order to prevail.]

While Pearce created a rebuttable presumption of vindictiveness, its rule has been limited by subsequent cases. "The United States Supreme Court has since explained that it has restricted application of Pearce to areas where its objectives are thought most efficaciously served. Such circumstances are those in which there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority" (¶ 36) (citations and internal quotes omitted). "The Court has also explained that a reasonable likelihood of vindictiveness exists only if there is a realistic possibility that the sentencing court, after being reversed, may engage in self-vindication and retaliate against the defendant for having successfully pursued appellate relief" (¶ 37).

In this case the court concluded that "the Pearce presumption of vindictiveness does not apply here because the defendant was resentenced by a different judicial authority at his request due to a non-judicial defect at the original sentence hearing, and the resentencing was granted by the original court in which the defect occurred. In such circumstances there is no realistic motive for vindictive sentencing, such that it can be said there was a reasonable likelihood of vindictiveness, much less a possibility of vindictiveness. As there was no hazard that [the defendant] was being penalized for seeking enforcement of the terms of his plea bargain, the Pearce presumption does not apply to this case" (¶ 56) (citations and internal quotes omitted).

The supreme court also held that, even if there were a presumption of vindictiveness, it was overcome "because new information regarding the deteriorated condition of the crime victim constituted objective evidence of an event occurring after the initial sentence that provided a nonvindictive justification for the circuit court's imposition of a more severe sentence" (¶ 57). Accordingly, the defendant's due process rights were not violated by the imposition of an increased sentence upon resentencing.

Municipal Law

Police and Fire Commissions - Statutory Appeal of Commission Disciplinary Action - Review by Common Law Writ of Certiorari

Gentilli v. Board of Police & Fire Commissioners of City of Madison, 2004 WI 60 (filed 2 June 2004)

The Madison Police and Fire Commission (PFC) discharged the petitioner, a firefighter employed by the city of Madison, for various violations of department rules. The petitioner sought review of the PFC's decision in two parallel actions in the circuit court. He pursued a statutory appeal pursuant to Wis. Stat. section 62.13(5)(i) in which the question was whether "just cause" for his termination was demonstrated at the PFC hearing. The second action was a petition for a writ of certiorari to determine whether the PFC had kept within its jurisdiction and proceeded on a correct theory of law (the issues in the certiorari action being whether department rules involved in the termination were vague and overbroad).

In the statutory appeal the circuit court concluded that there was "just cause" for the termination. This decision was final because by statute it is not appealable. The court then dismissed the certiorari action, concluding that all of the issues raised therein were encompassed within the statutory appeal. The petitioner appealed the dismissal of the certiorari action. The case was before the supreme court on certification from the court of appeals.

As described by the supreme court, the appeal "concerns the interaction of Wis. Stat. § 62.13(5)(i), governing circuit court review of an order of a board of police and fire commissioners, and common law certiorari review of such an order. More specifically, the question is whether

§ 62.13(5)(i) as amended in 1993 is the exclusive remedy for [the petitioner's] claim that the rules he was found to have violated were unconstitutionally vague and overbroad" (¶ 2).

In a unanimous decision authored by Chief Justice Abrahamson, the supreme court concluded that

"§ 62.13(5)(i) as amended in 1993 is not the exclusive remedy for a claim that the rules a subordinate was found to have violated were unconstitutionally vague and overbroad. The constitutional issues of vagueness or overbreadth of administrative rules that [the petitioner] raised in his petition for a writ of certiorari are issues of law that even if somewhat overlapping with the issues in the statutory appeal proceeding may be considered under certiorari because they concern whether the PFC board kept within its jurisdiction and proceeded on a correct theory of the law" (¶ 3). Whether an administrative agency like the PFC kept within its jurisdiction and whether the agency proceeded on a correct theory of the law are traditional questions reviewable by a writ of certiorari.

Accordingly, the supreme court reversed the order of the circuit court dismissing the certiorari action and remanded the matter to the circuit court.

Justice Roggensack did not participate in this decision.

Sex Offenders

Registration - Juveniles - Stays

State v. Cesar G., 2004 WI 61 (filed 3 June 2004)

Cesar G., then age 12, was adjudicated delinquent for his role in the sexual assault of a young girl. The dispositional order included a requirement that Cesar register as a sex offender. After the circuit court denied a defense motion to stay that part of the order, the court of appeals affirmed. Two issues were before the supreme court. First, is a circuit court authorized to stay an order requiring a delinquent child to register as a sex offender? Second, if it has such discretion, what criteria should be applied in making the determination?

The supreme court, in an opinion written by Chief Justice Abrahamson, reversed the court of appeals and remanded the matter. First, Wis. Stat. section 938.34(16) authorizes a circuit court to stay dispositional orders requiring a delinquent child to register as a sex offender. The holding is rooted in the "text, history, and purpose" of the pertinent statute. In particular, "[a] statutory scheme designed to give circuit courts flexibility to tailor dispositional orders to the circumstances of a particular case would give a circuit court discretion to stay all or some portions of a dispositional order, including sex offender registration" (¶ 33). "In sum, we conclude that the sex offender registration requirement established in Wis. Stat. § 938.34(15m) is a disposition. Furthermore, Wis. Stat. § 938.34(16) allows the circuit court to stay one or more of the § 938.34 dispositions contained in its dispositional order, including the disposition requiring the juvenile to register as a sex offender" (¶ 40).

Second, the record revealed that the circuit court had erroneously denied the stay based on its mistaken conclusion that it lacked authority to do so. See ¶ 46. The supreme court held that on remand the lower court should consider the factors set forth in Wis. Stat. sections 938.34(15m)(c) and 301.45(1m)(e), along with the seriousness of the offense, in determining whether a stay is appropriate.

Torts

Dog-bite Cases - Summary Judgment - Public Policy Factors

Fandrey v. American Fam. Mut. Ins. Co., 2004 WI 62 (filed 3 June 2004)

A woman took her 3-year-old daughter with her to deliver cookies to friends. The mother and child entered the home of the defendant, a close friend, through an unlocked door and discovered that she was not home. The mother put the child down as she wrote a note to her friend. At some point, the defendant's dog bit the child on the mouth and injured her. The child sued the defendant homeowner and her insurance company pursuant to the dog-bite statute, Wis. Stat. section 174.02. The circuit court granted summary judgment on behalf of the defendants based on public policy grounds.

On certification, the supreme court affirmed in an opinion written by Justice Wilcox. First, public policy analysis may be properly applied to strict liability statutes generally and to section 174.02 in particular, especially since a dog owner's liability is subject to comparative negligence principles (¶ 20). The majority opinion extensively discussed the origins and evolution of the public policy analysis and its replacement of the older concept of "proximate cause." See ¶15.

Second, on this record the circuit court properly applied public policy analysis at the summary judgment stage, and the supreme court had no difficulty making its own determination. The facts were truly undisputed (the plaintiff did not even submit competing summary judgment material). "When the policy questions are fully presented to us and the facts are easily ascertainable, this court can utilize public policy to preclude liability before a trial" (¶ 27). The remainder of the opinion is a record-intensive application of the public policy factors to the facts in this case (for example, "were we to allow liability here, the door would be open to imposing liability on a homeowner when a burglar enters his or her home and is injured by a dog") (¶ 39).

Justice Bradley, joined by Chief Justice Abrahamson, concurred and wrote separately to emphasize that "proximate cause" and "public policy factors" are not interchangeable; rather, "in Wisconsin we use public policy factors, not proximate cause, to limit liability" (¶ 45).

Damages - "No Case" Rule - Interest

Weber v. White, 2004 WI 63 (filed 8 June 2004)

A jury awarded the plaintiffs $5,000 for future health care expenses. The court of appeals reversed the award because it was based on "fatally contradictory testimony."

The supreme court, in an opinion authored by Justice Bradley, reversed the court of appeals. Because the circuit court had approved the jury's verdict, the supreme court applied an "erroneous exercise of discretion" standard of review (¶ 18). That said, the court wrestled with the application of the "no case rule" articulated in Ianni v. Grain Dealers Mutual Insurance Co., 42 Wis. 2d 354 (1969), which held that "no case is made" when a party relies on the testimony of a single witness that is "contradictory and conflicting with no explanation of the contradiction" (¶ 24). The court refused to apply the "no case" rule here because the asserted contradictions by the expert witness were "contrived." (They related to the number of future chiropractic treatments the plaintiff might require.) "The law does not require mathematical certainty to determine future health care expenses. As long as the decision is based on probability and not possibility, the court can make such an award" (¶ 30).

A second issue involved the defendant's request to pay a portion of the judgment to the clerk of courts to avoid the accumulation of further statutory interest. The supreme court upheld the trial court's application of the four-factor analysis set forth in

prior case law, particularly the concern that "if the money were paid directly to the clerk, the [plaintiffs] would not have control of it and would not receive the statutory interest on the judgment" (¶ 39).

Zoning

Variances - Standard Applicable to Area Variances

State v. Waushara County Bd. of Adjustment, 2004 WI 56 (filed 18 May 2004)

Zoning variances are of two types: use variances and area variances. "A use variance is one that permits a use other than that prescribed by the zoning ordinance in a particular district. An area variance has no relationship to a change of use. It is primarily a grant to erect, alter, or use a structure for a permitted use in a manner other than that prescribed by the restrictions of a zoning ordinance." State v. Outagamie County Bd. of Adjustment, 2001 WI 78, ¶ 34.

In this case the supreme court was called on to determine the correct legal standard to be applied by a board of adjustment when considering whether to grant an area variance. "More specifically, is the correct legal standard whether the failure to receive the variance will create, for the property owner, an unnecessary hardship in light of the purposes of the zoning ordinance, or is it whether the owner will have no reasonable use of the property without a variance?" (¶ 1)

In a majority decision authored by Justice Crooks, the supreme court concluded that, in evaluating whether to grant an area variance to a zoning ordinance, a board of adjustment should focus on the purpose of the zoning law at issue in determining whether an unnecessary hardship exists for the property owner seeking such variance. "We further conclude that the facts of the case should be analyzed in light of that purpose, and that boards of adjustment must be afforded flexibility so that they may appropriately exercise their discretion. We also again recognize and emphasize the presumption that the board's decision is correct" (¶ 35).

The court reaffirmed the definition of the statutory term "unnecessary hardship" articulated in Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d 468, 247 N.W.2d 98 (1976), because the Snyder definition best encompasses the appropriate test for granting an area variance. In Snyder the court stated that the test for unnecessary hardship relating to area variances is "[w]hether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome." Id. at 475.

The court further concluded that the "no reasonable use of the property without a variance" standard, as set forth in State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), is no longer applicable when an area variance is being considered. Moreover, while there was a claim in this case that the variance implicated shoreland zoning concerns, "it should be noted that the proposed addition would not bring the [petitioners'] home any closer to [the lake]" (¶ 35).

Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson. Justice Roggensack did not participate in this decision.

Wisconsin Lawyer