City of Milwaukee v. Sammie L. Glass
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2001 WI 61 SUPREME COURT OF WISCONSIN Case No.: 99-2389 Complete Title of Case: In Re the Return of Property in State v. Sammie L. Glass: City of Milwaukee, Appellant, v. Sammie L. Glass, Respondent-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS 2000 WI App 252 Reported at: 239 Wis. 2d 373, 620 N.W.2d 213 (Published) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: June 13, 2001 May 1, 2001 Circuit Milwaukee Dennis P. Moroney JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the respondent-petitioner there were briefs by George P. Kersten, Leslie Van Buskirk and Kersten & McKinnon, S.C., Milwaukee, and oral argument by George P. Kersten and Leslie M. Van Buskirk. For the appellant there was a brief and oral argument by David J. Stanosz, assistant city attorney, with whom on the brief was Grant F. Langley, city attorney. 2 2001 WI 61 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-2389 STATE OF WISCONSIN : IN SUPREME COURT In re the Return of Property in State v. Sammie L. Glass: FILED City of Milwaukee, Appellant, JUN 13, 2001 v. Cornelia G. Clark Clerk of Supreme Court Madison, WI Sammie L. Glass, Respondent-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE. Affirmed. This is a review of a published decision of the court of appeals1 reversing an order of the Circuit Court for Milwaukee County, Dennis P. Moroney, Circuit Court Judge. The order of the circuit court awarded the plaintiff, Sammie L. Glass, $1,606.80 in response to his petition for the return of property seized from him by the Milwaukee Police Department. 1 The plaintiff's petition for the In re the Return of Property in State v. Sammie L. Glass: City of Milwaukee v. Sammie L. Glass, 2000 WI App 252, 239 Wis. 2d 373, 620 N.W.2d 213. No. 99-2389 return of property seized from him was filed pursuant to Wis. Stat. § 968.20 (1997-98).2 The City of Milwaukee appealed the order, contending that § 968.20, providing for the return of seized property, does not authorize a circuit court to award monetary damages against the City when the City cannot return the seized property because it no longer has possession of the seized property. The court of appeals reversed the order of the circuit court, and the plaintiff now seeks review in this court. ¶2 We affirm the decision of the court of appeals, concluding that Wis. Stat. § 968.20 does not authorize a circuit court to award monetary damages against the City when the City cannot return the seized property because it no longer has possession of the seized property. I ¶3 On March The relevant facts of this case are not in dispute. 20, 1996, the Milwaukee police arrived at the plaintiff's garage to investigate a complaint of theft from a construction property they site. Inside believed to the be garage, stolen, the officers including copper roofing nails, and other scrap metal. copper found wire, They arrested the plaintiff for the crime of receiving stolen property and seized the property believed to have been stolen. 2 All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated. 2 No. ¶4 On March 11, 1998, at the close of the 99-2389 State's criminal proceedings against the plaintiff, the circuit court dismissed the criminal charges against the plaintiff. On September 17, 1998, in accordance with Wis. Stat. § 968.20, the plaintiff filed a petition for the return of the property seized from his garage. ¶5 The plaintiff represented himself at the hearing on the petition on October 26, 1998. At the hearing, the City requested additional time to document what police had done with the property. The attorney for the City suggested that the City no longer had possession of the property because the officers had turned the property over to believed to be the rightful owner. a third person, whom they The circuit court scheduled a second hearing to establish what the City had done with the property at issue. The circuit court further stated that it was treating the case as a bailment situation and that the plaintiff should establish the fair market value of the property, for which the City would be liable. ¶6 At the second hearing, on December 4, 1998, the City took the position that the plaintiff had failed to establish that the City ever had possession of the property. The inventory number that the plaintiff had provided on the petition form did not correspond to the property described. The circuit court asked the plaintiff if he had a receipt for the seized property, but the plaintiff stated that the officers had not provided a receipt. of the property Instead, the plaintiff offered photographs that he alleged 3 had been provided to his No. attorney by the City police. 99-2389 The City denied that the police had taken these photographs. The City further contended that it could not be liable for the fair market value of the property, because Wis. Stat. § 968.20 does not provide for monetary damages as a remedy for failure to return the seized property. ¶7 At a third hearing, on January 15, 1999, the plaintiff offered an amended inventory number that corresponded to the property described. the criminal taken the In addition, the plaintiff's attorney for case testified photographs in that the question, City as police the had indeed plaintiff had asserted. ¶8 The City then conceded that the officers had seized the property but moved to dismiss the petition on the grounds that the City no longer had possession of the property. It again argued that Wis. Stat. § 968.20 only authorizes a circuit court to order the return of seized property and does not authorize a circuit court to award monetary damages for failure to return the seized property. In addition, the City argued that the plaintiff failed to comply with the notice of claim provisions of Wis. Stat. § 893.80(1)(b).3 3 The parties have also raised the issue regarding the applicability of the notice of claim statute, Wis. Stat. § 893.80, in this court. Because we conclude that Wis. Stat. § 968.20 does not allow a circuit court to award monetary damages, we need not address the application of Wis. Stat. § 893.80. 4 No. ¶9 99-2389 Alternatively, the City requested additional time to review the amended inventory number, to implead third parties, and to conduct discovery. The circuit court denied the City's motion to dismiss but allowed the City 120 days to implead third parties and to conduct discovery. ¶10 court At the final hearing, on May 14, 1999, the circuit awarded the plaintiff $1,606.80, which the plaintiff established as the fair market value of the property seized. ¶11 The City appealed, and the court of appeals reversed the order of the circuit court. B. Schudson, the court of Over a dissent by Judge Charles appeals concluded that Wis. Stat. § 968.20 contemplates only a return of seized property and does not authorize a circuit failure to return the court to seized award monetary property.4 damages Judge for Schudson dissented, arguing that the majority decision placed form over substance and led to an absurd result. II We also need not address whether a circuit court should proceed to determine ownership under Wis. Stat. § 968.20 when the person in possession of the property has not been notified of the proceedings. The sole issue in this case is whether Wis. Stat. § 968.20 authorizes a circuit court to award monetary damages when seized property is no longer in the possession of the entity that seized it. The plaintiff does not seek a determination regarding the ownership of the property. Accordingly, this question is not before us. 4 The court of appeals further held that a monetary judgment against the City was barred because the plaintiff had not filed a notice of claim, as required by Wis. Stat. § 893.80. 5 No. ¶12 The issue before this court is whether 99-2389 Wis. Stat. § 968.20 authorizes a circuit court to award a plaintiff the fair market value of seized property when the City no longer has possession of the seized property. ¶13 The relevant portions of Wisconsin Stat. § 968.20, entitled "Return of property seized," provide: (1) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband or property covered under sub. (1m) or (1r) or s. 951.165, returned if: (a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or (b) All proceedings in which it might be required have been completed. ¶14 action The parties' authorized contends that Wis. by dispute Wis. Stat. centers Stat. § 968.20 on the nature § 968.20. creates The a of the plaintiff civil cause of action, allowing a circuit court to exercise its full equitable powers to do complete justice between the parties. the City proceeding. contends The that City Wis. Stat. urges 6 that § 968.20 a is circuit In contrast, an in rem court has No. 99-2389 jurisdiction over seized property, but not personal jurisdiction over the parties, and that without personal jurisdiction over the City, a circuit court cannot award money damages to a person whose property was seized. ¶15 Accordingly, we must determine whether Wis. Stat. § 968.20 establishes an in personam action, as the plaintiff's arguments suggest, or an in rem action, as the City contends. Two factors lead us to conclude that § 968.20 contemplates an in rem action. ¶16 First, we consider the aims and objects of the action to determine whether it is in rem or in personam in nature and character. An in personam action is directed against specific persons and seeks a judgment to be enforced personally against the defendant. An in rem action is directed against the property and seeks a judgment as against the world with respect to the property that is the subject of the action.5 Section 968.20 appears to describe an in rem action in that it authorizes a circuit court to determine the ownership of seized property and order its return. ¶17 Second, we consider the procedure set forth in Wis. Stat. § 968.20. actions in Actions in rem are procedurally distinct from personam. Chapter 801 of the statutes, entitled "Civil Procedure Commencement of Action and Venue," sets forth different procedural requirements for the two types of actions. 5 See Delta Fish and Fur Farms, Inc. v. Pierce, 203 Wis. 519, 530-31, 234 N.W. 881 (1931); State ex rel. Atkinson v. McDonald, 108 Wis. 8, 14, 84 N.W. 171 (1900). 7 No. 99-2389 In an in personam action, one or more jurisdictional grounds set forth in the statutes must exist and a defendant must be served with a summons in order for a court to render a judgment against a party personally.6 may be invoked when the In contrast, in rem jurisdiction subject of an action is personal property in which a defendant has an interest, and a notice of the action is served on the defendant pursuant to the statutes.7 ¶18 The explicit purpose of § 968.20(1) is to hear all claims to the true ownership of property seized under certain conditions. A circuit court is required "to order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property." Stat. § 968.20(1). Wis. Section 968.20 does not set forth grounds for personal jurisdiction over the parties and does not provide for a judgment against any defendant personally. Section 968.20 thus does not seem to describe an in personam action. ¶19 § 968.20 Considering the aims action the procedure and and objects set of forth a Wis. Stat. in Wis. Stat. § 968.20, we conclude that Wis. Stat. § 968.20 establishes an in rem proceeding. The court reached this same conclusion in a recent case.8 6 Wis. Stat. (Rule) § 801.04(2). 7 See Wis. Stat. (Rules) §§ 801.04(3); 801.07(1); 801.12. 8 See Jones v. State, 226 Wis. 2d 565, 595, 594 N.W.2d 738 (1999) (stating that Wis. Stat. § 968.20 is an in rem action). 8 No. ¶20 We now turn to whether the plaintiff 99-2389 may obtain monetary damages from the City in this proceeding under Wis. Stat. § 968.20. He cannot. Wisconsin Stat. § 968.20 does not expressly state that a circuit court may award monetary damages if seized property is not returned. court did not accordance obtain personal with the Furthermore, the circuit jurisdiction statutes over governing civil the City in actions, a prerequisite for awarding monetary damages against the City.9 ¶21 a We have concluded that a proceeding under § 968.20 is proceeding property. in rem to determine true ownership of specific A judgment in an in rem proceeding is valid only against the specific property and not against a defendant or a defendant's other assets.10 ¶22 The plaintiff urges this equitable powers into the statute. court to read broader He contends, as did Judge Schudson's dissent, that the court of appeals elevated form over substance. Moreover, he contends that this result is contrary to the legislative intent behind Wis. Stat. § 968.20, which was to provide a simplified means of recovery for seized property that is no longer needed as evidence in criminal proceedings. In particular, the plaintiff highlights the inequity that arises when an individual whose seized property has been disposed of in 9 See Wis. Stat. (Rule) § 801.04(2). 10 See Wis. Stat. (Rules) §§ 801.04(3) and 801.07; see also Edwin E. Bryant, 1 Callaghan's Wisconsin Pleading and Practice § 6.12, at 467 (4th ed. 1997). 9 No. 99-2389 an unauthorized manner is denied the benefit of a simplified means of recovery. ¶23 While the plaintiff's arguments regarding fairness are persuasive, these arguments do not allow this court to transform an in rem proceeding into an in personam proceeding in order to achieve a more fair result. circuit court jurisdiction This court cannot confer upon a that the circuit court does not possess by law.11 ¶24 Courts have personal jurisdiction only to the extent authorized by Chapter 801. Wisconsin Stat. (Rule) § 801.04(2) provides that a court: may render a judgment against a party personally only if there exists one or more of the jurisdictional grounds set forth in s. 801.05 or 801.06 and in addition either: (a) A summons is served upon the person pursuant to s. 801.11; or (b) Service of a summons is dispensed with under the conditions in s. 801.06. ¶25 No summons was served on the City of Milwaukee in this action. Instead, Wis. Stat. § 968.20 authorized the circuit court proceed to "with such notice as it deems adequate." Although Wis. Stat. (Rule) § 801.06 allows a court to exercise personal jurisdiction affirmative defense of over lack a defendant who of jurisdiction has over waived his the or her person, Wis. Stat. (Rule) § 801.06 specifically provides: 11 See Defiance Mach. Works v. Gill, 170 Wis. 477, 486-87, 175 N.W. 940 (1920). 10 No. An appearance to contest . . . jurisdiction under s. seeking any other relief appearance within the meaning ¶26 We the basis for in rem 802.06 (2)(a) 3. without does not constitute an of this section. turn to the transcripts whether determine the City has personal jurisdiction. 99-2389 waived of each hearing its right to to contest In the first hearing, the City requested additional time to clarify the basis for in rem jurisdiction under Wis. Stat. § 968.20, namely, to determine whether the City had possession of the property in question at the time of the proceeding. contested At the each of circuit the next court's three authority hearings, to the award City monetary damages after the City had established that it no longer had possession of the property. court did not gain Thus, we conclude that the circuit personal jurisdiction over the City of heed to Milwaukee by virtue of its appearances in this matter. ¶27 In affirming the court of appeals, we pay Judge Schudson's dissent, which noted that the plaintiff, "a pro se litigant, will be amazed that this court casts him back into a legal maze." However, we can discern no alternative under Wis. Stat. § 968.20, which sets forth a simplified means for returning seized assumption that possession of property. a the person seized Section who 968.20 seizes property. rests property Indeed, will this on the retain assumption would be in keeping with Wis. Stat. § 968.19, entitled "Custody of property seized," which requires seized property to be safely kept. Section 968.19 provides: 11 No. 99-2389 Property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer, who may leave it in the custody of the sheriff and take a receipt therefor, so long as necessary for the purpose of being produced as evidence on any trial. ¶28 Although we are sympathetic to the plaintiff's contention that an individual whose property has been seized should not authorities be have denied a simplified unlawfully remedy disposed of the merely because property, we conclude that it is for the legislature, not the courts, to create that simplified remedy. ¶29 For the reasons set forth, we affirm the decision of the court of appeals, which reversed the order of the circuit court. By the Court. The decision affirmed. 12 of the court of appeals is No. 1 99-2389
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