Chapter 806

806.04 Annotation Sub. (2) does not address the application of the exhaustion of administrative remedies doctrine. The doctrine may apply even though a party seeks relief that falls within sub. (2). Although administrative agencies do not have the power to declare statutes unconstitutional and the lack of authority has been a basis for not applying the exhaustion doctrine, if the agency has the authority to provide the relief requested without invalidating the rule, a constitutional basis for the claim does not in itself support an exception to the exhaustion rule. Metz v. Veterinary Examining Board, 2007 WI App 220, 305 Wis. 2d 788, 741 N.W.2d 244, 06-1611.

806.04 Annotation Sub. (11) does not require that, when a declaratory judgment as to the validity of a statute or ordinance is sought, every person whose interests are affected by the statute or ordinance must be made a party to the action. If the statute were so construed, the remedy would be rendered impractical and indeed often worthless for determining the validity of legislative enactments, either state or local, since such enactments commonly affect the interests of large numbers of people. Helgeland v. Wisconsin Municipalities, 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540.

806.04 Annotation Ripeness, as it pertains to declaratory judgments, is a legal conclusion subject to de novo review. Olson v. Town of Cottage Grove, 2008 WI 51, 309 Wis. 2d 365, 749 N.W.2d 211, 05-2257.

806.04 Annotation Parties to a written instrument may seek a declaration of the construction or validity of the instrument, and a contract may be construed either before or after a breach. Thus, the plaintiffs did not need to allege a breach of obligations regarding the construction of a driveway over an easement granted in a recorded instrument in order to seek a declaration of those obligations. Mnuk v. Harmony Homes, Inc., 2010 WI App 102, 329 Wis. 2d 182, 790 N.W.2d 514, 09-1178.

806.04 Annotation This section should be construed together with the statute on class actions, s. 803.08, and therefore it does not exclude the procedure of representative defense of the interests of a class from an action for declaratory relief. Ewer v. Lake Arrowhead Ass’n, 2012 WI App 64, 342 Wis. 2d 194, 817 N.W.2d 465, 11-0113.

806.04 Annotation A matter is justiciable if the party seeking declaratory relief has a legal interest in the controversy, that is to say a legally protectable interest, which is often expressed in terms of standing. The plaintiffs’ request for declaratory judgment interpreting a newly enacted statute was not justiciable when the plaintiffs failed to show how they possibly could be in violation of the statute. Planned Parenthood of Wisconsin, Inc. v. Schimel, 2016 WI App 19, 367 Wis. 2d 712, 877 N.W.2d 604, 14-2085.

806.04 Annotation Lake Country, 2002 WI App 301, stands for the proposition that the successful invocation of taxpayer standing requires an allegation of either direct harm to the plaintiff’s property or a risk of pecuniary loss or substantial injury. The alleged unlawful expenditure of public funds, if otherwise sufficient to survive a motion to dismiss, is sufficient to support taxpayer standing. Voters with Facts v. City of Eau Claire, 2017 WI App 35, 376 Wis. 2d 479, 899 N.W.2d 706, 15-1858.

806.04 Annotation Affirmed on other grounds. 2018 WI 63, 382 Wis. 2d 1, 913 N.W.2d 131, 15-1858.

806.04 Annotation In themselves, doctrines that can confer standing on a party cannot be substituted for a statutory or constitutional provision that creates a legally protectable interest. Standing is an issue that can arise in the first place only if a constitutional or statutory provision underlies the claim. Standing refers to a party’s role that enables it to enforce a substantive right, not to a substantive right in itself. Wisconsin Manufacturers & Commerce v. Evers, 2021 WI App 35, 398 Wis. 2d 164, 960 N.W.2d 442, 20-2081.

806.04 Annotation Affirmed on other grounds. 2022 WI 38, 401 Wis. 2d 699, 977 N.W.2d 374, 20-2081.

806.04 Annotation Subs. (1) and (5) together make clear that courts have power to declare rights, status, and other legal relations and that sub. (2) does not limit or restrict the exercise of that general power. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, 23-1399.

806.04 Annotation Because the Department of Natural Resources operates under the supervision of a board under s. 15.34 (1), and because declaratory judgments can be brought against the officer or agency charged with administering a statute, the board is a proper party to a declaratory judgment challenging some of the department’s policies as invalid and unenforceable rules. Wisconsin Manufacturers & Commerce, Inc. v. DNR, 2024 WI App 18, 411 Wis. 2d 462, 5 N.W.3d 903, 22-0718.

806.04 Annotation There is no authority for the proposition that a governmental entity provided notice of a constitutional challenge to one of its statutes in the context of private litigation must intervene or suffer the consequences. While the attorney general may have a general duty to defend Wisconsin statutes against constitutional attack, this does not mandate intervention and justify the application of preclusion principles. Intervention is a strategic decision left to the better judgment of the attorney general. Flying J, Inc. v. Van Hollen, 597 F. Supp. 2d 848 (2009).

806.05 806.05 Declaratory judgments against obscene matter.

806.05(1) (1) Grounds for and commencement of action. Whenever there is reasonable cause to believe that any book, magazine, or other written matter, or picture, sound recording or film, which is being sold, loaned, or distributed in any county, or is in the possession of any person who intends to sell, loan or distribute the same in any county, is obscene, the district attorney of such county, in the name of the state, as plaintiff, may file a complaint in the circuit court for such county directed against such matter by name. Upon the filing of such complaint, the court shall make a summary examination of such matter. If it is of the opinion that there is reasonable cause to believe that such matter is obscene, it shall issue an order, directed against said matter by name, to show cause why said matter should not be judicially determined to be obscene. This order shall be addressed to all persons interested in the publication, production, sale, loan, exhibition and distribution thereof, and shall be returnable within 30 days. The order shall be published as a class 2 notice, under ch. 985. A copy of such order shall be sent by certified mail to the publisher, producer, and one or more distributors of said matter, to the persons holding the copyrights, and to the author, in case the names of any such persons appear on such matter or can with reasonable diligence be ascertained by said district attorney. Such publication shall commence and such notices shall be so mailed within 72 hours of the issuance of the order to show cause by the court.

806.05(1m) (1m) Interlocutory adjudication. After the issuance of the order to show cause under sub. (1), the court shall, on motion of the district attorney, make an interlocutory finding and adjudication that said book, magazine or other written matter or picture, sound recording or film is obscene, which finding and adjudication shall be of the same effect as the final judgment provided in sub. (3) or (5), but only until such final judgment is made or until further order of the court.

806.05(2) (2) Right to defend; jury trial. Any person interested in the publication, production, sale, loan, exhibition or distribution of such matter may appear and file an answer on or before the return day named in said notice. If in such answer the right to trial by jury is claimed on the issue of the obscenity of said matter, such issue shall be tried to a jury. If no right to such trial is thus claimed, it shall be deemed waived, unless the court shall, for cause shown, on motion of an answering party, otherwise order.

806.05(3) (3) Default. If no person appears and answers within the time allowed, the court may then, without notice, upon motion of the plaintiff, if the court finds that the matter is obscene, make an adjudication against the matter that the same is obscene.

806.05(4) (4) Speedy hearing; rules of evidence. If an answer is filed, the case shall be set down for a speedy hearing, but an adjudication of default and order shall first be entered against all persons who have not appeared and answered in the manner provided in sub. (3). If any person answering so demands, the trial shall not be adjourned for a period of longer than 72 hours beyond the opening of court on the day following the filing of the answer. At such hearing, subject to chs. 901 to 911, the court shall receive the testimony of experts and evidence as to the literary, cultural or educational character of said matter and as to the manner and form of its production, publication, advertisement, distribution and exhibition. The dominant effect of the whole of such matter shall be determinative of whether said matter is obscene.

806.05(5) (5) Findings and judgment. If, after the hearing, the court or jury, unless its finding is contrary to law or to the great weight and clear preponderance of the evidence, determines that the matter is obscene, the court shall enter judgment that the matter is obscene. If it is determined that the matter is not obscene, the court shall enter judgment dismissing the complaint, and a total of not more than $100 in costs, in addition to taxable disbursements, may be awarded to the persons defending the matter, which shall be paid from the county treasury. Any judgment under this subsection may be appealed to the court of appeals under chs. 808 and 809 by any person adversely affected, and who is either interested in the publication, production, sale, loan, exhibition or distribution of the matter, or is the plaintiff district attorney.

806.05(6) (6) Admissibility in criminal prosecutions. In any trial for a violation of s. 944.21, the proceeding under this section and the final judgment of the circuit court under sub. (3) or (5) or the interlocutory adjudication under sub. (1m), shall be admissible in evidence on the issue of the obscenity of said matter and on the issue of the defendant’s knowledge that said matter is obscene, provided, that if the judgment of the court sought to be introduced in evidence is one holding the matter to be obscene, it shall not be admitted unless the defendant in said criminal action was served with notice of the judgment of the court hereunder, and the criminal prosecution is based upon conduct by said defendant occurring more than 18 hours after such service or such appearance, whichever is earlier.

806.05 History History: Sup. Ct. Order, 67 Wis. 2d 585, 721 (1975); 1975 c. 218; 1977 c. 187, 272.

806.05 Annotation The provision of sub. (1m) that permits an interlocutory judgment prior to an adversary adjudication and of sub. (6) that permits admission of the interlocutory judgment in evidence in a criminal trial are unconstitutional. State v. I, A Woman—Part II, 53 Wis. 2d 102, 191 N.W.2d 897 (1971).

806.05 Annotation The notice procedures under sub. (1) meet due process requirements. State v. Erotomic, 87 Wis. 2d 536, 275 N.W.2d 160 (Ct. App. 1979).

806.06 806.06 Rendition, perfection and entry of judgment.

806.06(1) (1) 

806.06(1)(a) (a) A judgment is rendered by the court when it is signed by the judge or by the clerk at the judge’s written direction.

806.06(1)(b) (b) A judgment is entered when it is filed in the office of the clerk of court.

806.06(1)(c) (c) A judgment is perfected by the taxation of costs and the insertion of the amount thereof in the judgment.

806.06(1)(d) (d) A judgment is granted when given orally in open court on the record.

806.06(2) (2) The judge or the clerk upon the written order of the judge may sign the judgment. The judgment shall be entered by the clerk upon rendition.

806.06(3) (3) After an order or judgment is entered, either party may serve upon the other a written notice of entry containing the date of entry.

806.06(4) (4) A judgment may be rendered and entered at the instance of any party either before or after perfection. If the party in whose favor the judgment is rendered causes it to be entered, the party shall perfect the judgment within 30 days of entry or forfeit the right to recover costs. If the party against whom the judgment is rendered causes it to be entered, the party in whose favor the judgment is rendered shall perfect it within 30 days of service of notice of entry of judgment or forfeit the right to recover costs. If proceedings are stayed under s. 806.08, judgment may be perfected at any time within 30 days after the expiration of the stay. If the parties agree to settle all issues but fail to file a notice of dismissal, the judge may direct the clerk to draft an order dismissing the action. No execution shall issue until the judgment is perfected or until the expiration of the time for perfection, unless the party seeking execution shall file a written waiver of entitlement to costs.

806.06(5) (5) Notice of entry of judgment or order must be given within 21 days after the entry of judgment or order to constitute notice under s. 808.04 (1).

806.06 History History: Sup. Ct. Order, 67 Wis. 2d 585, 724 (1975); 1975 c. 218; Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981).

806.06 Note Judicial Council Committee’s Note, 1979: Sub. (5) is amended by adding a reference to the entry of an order so as to conform with s. 808.04 (1), which establishes appeal time periods from the entry of a judgment “or” order. [Re Order effective Jan. 1, 1980]

806.06 Note Judicial Council Committee’s Note, 1981: Subs. (3) and (5) are amended to clarify what constitutes a sufficient notice of entry to reduce the appeal time. The notice of entry must be a written document, other than the judgment or order, containing the date of entry and served after the entry of the judgment or order. The notice must accurately and completely inform the opposing party as to the date of entry. [Re Order effective Jan. 1, 1982]

806.06 Annotation Notice of entry of judgment was “given” within the meaning of sub. (5) when it was mailed. Section 801.15 (5) was inapplicable. Bruns v. Muniz, 97 Wis. 2d 742, 295 N.W.2d 11 (Ct. App. 1980).

806.06 Annotation The last document in litigation should indicate on its face that for purposes of appeal it is a final order or judgment and that no subsequent document is contemplated. Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490, 326 N.W.2d 240 (1982).

806.06 Annotation Under s. 808.04 (1), notice of entry of judgment must be given within 21 days of the entry of judgment, not of signing, consistent with sub. (5). Linnmar, Inc. v. First Enterprises, Inc., 161 Wis. 2d 706, 468 N.W.2d 753 (Ct. App. 1991).

806.06 Annotation Sub. (4) governs the timeliness of an application for attorney fees in a federal civil rights action. Hartman v. Winnebago County, 216 Wis. 2d 419, 574 N.W.2d 222 (1998), 96-0596.

806.06 Annotation No statute authorizes a clerk of court’s office to correct a clerical error in the sentence portion of a judgment of conviction. The circuit court, and not the clerk’s office, must determine the merits of a request for a change in the sentence portion of a written judgment because of an alleged clerical error. State v. Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857, 98-2263.

806.06 Annotation An action to enforce a contractual agreement to pay attorney fees in the event of a suit between the parties to the contract was subject to the time limit under sub. (4). Purdy v. Cap Gemini America, Inc., 2001 WI App 270, 248 Wis. 2d 804, 637 N.W.2d 763, 00-3544.

806.06 Annotation Sub. (4) governs time limits when a judgment has been rendered. An order for consolidation is not a judgment and cannot trigger the time limits under sub. (4). Forman v. McPherson, 2004 WI App 145, 275 Wis. 2d 604, 685 N.W.2d 603, 03-2505.

806.06 Annotation The prevailing party’s claim for an award of attorney fees due under a contract does not affect the finality of a judgment or order that disposes of the entire matter in litigation as to one or more of the parties. There is no distinction between a claim for attorney fees based on a contract as opposed to one based on a statute. When the recovery of attorney fees is authorized by a statute or a contract, the attorney fees are litigation “disbursements and fees allowed by law” as set forth in s. 814.04 (2). McConley v. T.C. Visions, Inc., 2016 WI App 74, 371 Wis. 2d 658, 885 N.W.2d 816, 16-0671.

806.06 Annotation When a party timely files its proposed bill of costs within the 30-day time limit for perfection set forth under sub. (4), the party’s right to recover costs is not forfeited simply because the costs are objected to and the circuit court does not resolve that objection within 30 days. Instead, a circuit court clerk may exercise the adjournment powers granted by s. 814.10 (3) to effectively toll the 30-day time limit for a reasonable time, until the circuit court can conduct a hearing to resolve the dispute. Soletski v. Krueger International, Inc., 2019 WI App 7, 385 Wis. 2d 787, 924 N.W.2d 207, 17-2063.

806.06 Annotation How to Collect on a Judgment After the Demise of the Creditor’s Lien. Stelljes. Wis. Law. July/Aug. 2016.

806.07 806.07 Relief from judgment or order.

806.07(1) (1) On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:

806.07(1)(a) (a) Mistake, inadvertence, surprise, or excusable neglect;

806.07(1)(b) (b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15 (3);

806.07(1)(c) (c) Fraud, misrepresentation, or other misconduct of an adverse party;

806.07(1)(d) (d) The judgment is void;

806.07(1)(e) (e) The judgment has been satisfied, released or discharged;

806.07(1)(f) (f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated;

806.07(1)(g) (g) It is no longer equitable that the judgment should have prospective application; or

806.07(1)(h) (h) Any other reasons justifying relief from the operation of the judgment.

806.07(2) (2) The motion shall be made within a reasonable time, and, if based on sub. (1) (a) or (c), not more than one year after the judgment was entered or the order or stipulation was made. A motion based on sub. (1) (b) shall be made within the time provided in s. 805.16. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court.

806.07(3) (3) A motion under this section may not be made by an adoptive parent to relieve the adoptive parent from a judgment or order under s. 48.91 (3) granting adoption of a child. A petition for termination of parental rights under s. 48.42 and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adoptive child.

806.07 History History: Sup. Ct. Order, 67 Wis. 2d 585, 726 (1975); 1975 c. 218; 1997 a. 114.

806.07 Annotation There was no abuse of discretion in finding no excusable mistake when the movant had answered a complaint by business letter, was an experienced business person, was well-educated, and had undergone a nearly identical experience in a former case. Hansher v. Kaishian, 79 Wis. 2d 374, 255 N.W.2d 564 (1977).

806.07 Annotation A lawyer’s failure to answer a complaint due to misplacing a client’s papers while moving an office did not relieve the client from the resulting default judgment. Dugenske v. Dugenske, 80 Wis. 2d 64, 257 N.W.2d 865 (1977).

806.07 Annotation The trial court abused its discretion in refusing to consider whether the defendant, in sending a letter to the plaintiff’s counsel purporting to be an answer, had committed an excusable mistake. Maier Construction, Inc. v. Ryan, 81 Wis. 2d 463, 260 N.W.2d 700 (1978).

806.07 Annotation Section 805.17 (3) does not limit a trial court’s discretionary power to grant relief under sub. (1) (h) when reasons justifying relief are apparent to the court. Grodin v. Smith, 82 Wis. 2d 667, 264 N.W.2d 239 (1978).

806.07 Annotation A motion filed over six months after the entry of judgment was not filed within a “reasonable time” under sub. (2). Rhodes v. Terry, 91 Wis. 2d 165, 280 N.W.2d 248 (1979).

806.07 Annotation A postjudgment order of the circuit court denying a motion during the pendency of an appeal is not reviewable on an appeal from the judgment. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).

806.07 Annotation Sub. (1) (h) is to be liberally construed to allow relief from judgments whenever appropriate to accomplish justice. Conrad v. Conrad, 92 Wis. 2d 407, 284 N.W.2d 674 (1979).

806.07 Annotation Neglect by both a lawyer and client was not “excusable.” Charolais Breeding Ranches, Ltd. v. Wiegel, 92 Wis. 2d 498, 285 N.W.2d 720 (1979).

806.07 Annotation The trial court did not abuse its discretion in setting aside a judicial sale when the buyer based its bid on incorrect figures in the judgment of foreclosure. Family Savings & Loan Ass’n v. Barkwood Landscaping Co., 93 Wis. 2d 190, 286 N.W.2d 581 (1980).

806.07 Annotation Relief from a judgment entered in a ch. 227 review may not be granted under this section. Charter Manufacturing Co. v. Milwaukee River Restoration Council, Inc., 102 Wis. 2d 521, 307 N.W.2d 322 (Ct. App. 1981).

806.07 Annotation A judgment entered based on an erroneous determination by the court of its own powers is not necessarily void. Wisconsin Public Service Corp. v. Krist, 104 Wis. 2d 381, 311 N.W.2d 624 (1981).

806.07 Annotation New testing methods to establish paternity cannot be used to affect the finality of a long-decided paternity determination. State ex rel. R.A.S. v. J.M., 114 Wis. 2d 305, 338 N.W.2d 851 (Ct. App. 1983).

806.07 Annotation Sub. (1) (h) allows relief even if the claim sounds in sub. (1) (a), (b), or (c) if extraordinary circumstances justify relief. State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 363 N.W.2d 419 (1985).

806.07 Annotation The “reasonable time” requirement of sub. (2) does not apply to void judgments. Neylan v. Vorwald, 124 Wis. 2d 85, 368 N.W.2d 648 (1985).

806.07 Annotation An order granting a motion under sub. (1) (a) is not appealable as of right. Wellens v. Kahl Insurance Agency, Inc., 145 Wis. 2d 66, 426 N.W.2d 41 (Ct. App. 1988).

806.07 Annotation An order vacating a judgment arises in the context of an underlying action and is not appealable as of right because additional proceedings will follow. Wellens v. Kahl Insurance Agency, Inc., 145 Wis. 2d 66, 426 N.W.2d 41 (Ct. App. 1988).

806.07 Annotation A court may not use sub. (1) (h) purely as a vehicle to extend the time period for appeal. Eau Claire County v. Employers Insurance of Wausau, 146 Wis. 2d 101, 430 N.W.2d 579 (Ct. App. 1988).

806.07 Annotation A finding that there are grounds to reopen a divorce judgment under sub. (1) does not require reopening it. The trial court may exercise discretion in determining whether there are factors militating against reopening the judgment. Johnson v. Johnson, 157 Wis. 2d 490, 460 N.W.2d 166 (Ct. App. 1990).

806.07 Annotation A change in the judicial view of an established rule of law is not an extraordinary circumstance justifying relief under sub. (1) (h). Schwochert v. American Family Mutual Insurance Co., 166 Wis. 2d 97, 479 N.W.2d 190 (Ct. App. 1991).

806.07 Annotation Affirmed. 172 Wis. 2d 628, 494 N.W.2d 201 (1993).

806.07 Annotation A property division may be modified under this section, however the supremacy clause prevents a property division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski, 172 Wis. 2d 285, 493 N.W.2d 737 (Ct. App. 1992).

806.07 Annotation Sub. (1) (g) applies only to equitable actions. Nelson v. Taff, 175 Wis. 2d 178, 499 N.W.2d 685 (Ct. App. 1993).

806.07 Annotation A “reasonable time” to bring a motion under sub. (1) (h) can only be determined after a thorough review of all relevant factors. State ex rel. Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618, 511 N.W.2d 868 (1994).

806.07 Annotation A bank that failed to file an answer due to mislaying papers was not held to the same standard for excusable neglect as an attorney or insurance company. Baird Contracting, Inc. v. Mid Wisconsin Bank of Medford, 189 Wis. 2d 321, 525 N.W.2d 276 (Ct. App. 1994).

806.07 Annotation In determining whether to overturn a default judgment, the court must consider that the statute regarding vacation is remedial and should be liberally construed and that giving people their day in court is favored while default judgment is not. Prompt response to the default is also considered. Baird Contracting, Inc. v. Mid Wisconsin Bank of Medford, 189 Wis. 2d 321, 525 N.W.2d 276 (Ct. App. 1994).

806.07 Annotation A successor judge in a circuit court has the authority to modify or reverse rulings of a predecessor judge if the predecessor judge was empowered to make the modification or reversal. Dietrich v. Elliott, 190 Wis. 2d 816, 528 N.W.2d 17 (Ct. App. 1995).

806.07 Annotation Case law is not a “prior judgment” under sub. (1) (f). Relief from a judgment will not be granted because the law relied on in adjudicating a case has been overruled in unrelated proceedings. Schauer v. DeNeveu Homeowners Ass’n, 194 Wis. 2d 62, 533 N.W.2d 470 (1995).

806.07 Annotation The one-year time limit in sub. (2) cannot be tolled or extended under any circumstances for purposes of relief under sub. (1) (a). Miro Tool & Mfg., Inc. v. Midland Machinery, Inc., 205 Wis. 2d 650, 556 N.W.2d 437 (Ct. App. 1996), 95-2785.

806.07 Annotation An independent action for equitable relief from judgments or final orders procured by fraud is not prevented by this section. As sub. (2) does not prescribe a time limit for bringing an independent action, only laches applies. Walker v. Tobin, 209 Wis. 2d 72, 568 N.W.2d 303 (Ct. App. 1997), 96-0827.