Only the judgment debtor can be compelled to testify at a supplementary proceeding.

Creditor rights and debtor rights lawyers are often asked if a creditor with a judgment can take the deposition of someone who is not the debtor.  The answer is no, at least in Wisconsin.

 
STATE OF WISCONSIN : IN SUPREME COURT
Crown Castle USA, Inc., Crown Castle Atlantic,
LLC and Crown Castle GT Company, LLC,
Plaintiffs-Respondents,
v.
Orion Construction Group, LLC,
Defendant,
Orion Logistics, LLC,
Appellant-Petitioner.
FILED
MAR 22, 2012
Diane M. Fremgen
Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and
Remanded.
¶1 MICHAEL J. GABLEMAN, J. We review a published
decision of the court of appeals1 affirming an order of the
Outagamie County Circuit Court, Dee R. Dyer, Judge. On the
motion of Crown Castle USA, Inc., Crown Castle Atlantic, LLC,
1 Crown Castle USA, Inc. v. Orion Constr. Grp., LLC, 2011 WI
App 9, 331 Wis. 2d 74, 794 N.W.2d 272.
No. 2009AP3029
2
and Crown Castle GT Company, LLC, (collectively, “Crown
Castle”), the circuit court ordered Orion Logistics, LLC (“Orion
Logistics”), a non-judgment debtor third party,2 to testify at a
supplemental proceeding.
¶2 The question before us is whether Orion Logistics may
be compelled to testify at a supplemental proceeding under
Wisconsin Statutes section 816.06 (2007-08)3 when it is not a
judgment debtor.
¶3 We conclude that Wis. Stat. § 816.06 does not grant a
judgment creditor the right to compel a non-judgment debtor
third party to testify at supplemental proceedings. We base our
conclusion on the language of the statute, on its context and
statutory history, and on our prior holdings. Because Crown
Castle had no right, under § 816.06, to compel Orion Logistics
to testify at a supplemental proceeding, we reverse the court of
appeals decision and remand the cause to the circuit court for
further proceedings.
I. BACKGROUND
¶4 Orion Construction Group, LLC was a Wisconsin limited
liability corporation that ceased operations in 2006. Its
2 We use the phrase “non-judgment debtor third party”
throughout to refer to an individual or entity that is not a
party to the underlying action that produced the judgment, is
not the judgment debtor or an individual who may be compelled to
testify on behalf of a judgment debtor corporation, and has no
corporate affiliation with the judgment debtor.
3 All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
No. 2009AP3029
3
principal business was the construction of cellular telephone
towers, and its sole member4 was Douglas Larson (“Larson”).
Orion Logistics, LLC is a Wisconsin limited liability
corporation. Its principal business is the construction of wind
turbines, and its sole member is also Larson. Orion
Construction and Orion Logistics are entirely separate
corporations. The record reflects only one commonality between
Orion Construction and Orion Logistics: a common owner, Larson.
In the course of its business operations, Orion Construction
incurred a $480,231.50 liability, payable to Crown Castle.5
II. PROCEDURAL HISTORY
A. THE PENNSYLVANIA JUDGMENT
¶5 Crown Castle commenced an action against Orion
Construction in the Court of Common Pleas of Allegheny County,
Pennsylvania, seeking monetary damages to satisfy an account
receivable6 of $480,231.50. That court entered default judgment
4 “Member” is defined by Wis. Stat. § 183.0102(15) as “a
person who has been admitted to membership in a limited
liability company . . . .” A person is “admitted to membership
in a limited liability company” when he or she “acquir[es] a
limited liability company interest . . . .” § 183.0801(2).
5 Orion Construction incurred this $480,231.50 liability,
payable to Crown Castle, in the course of its business
operations. Orion Construction states in its briefs that it
contests the validity of this debt, but the validity of the debt
is not properly before the court. Therefore, we assume the debt
to be valid in the absence of facts in the record to the
contrary.
6 An “account receivable” is “[a]n account reflecting a
balance owed by a debtor; a debt owed by a customer to an
enterprise for goods or services.” Black’s Law Dictionary 19
(9th ed. 2009).
No. 2009AP3029
4
against Orion Construction and in favor of Crown Castle for
$496,239.17.7 Orion Construction did not contest the default
judgment because it was winding up8 its business operations.
B. THE WISCONSIN PROCEEDINGS
¶6 Crown Castle filed its foreign judgment in the office
of the Clerk of Court for Outagamie County pursuant to Wis.
Stat. § 806.24.9 Notice of the entry of the judgment was
provided to Orion Construction. Outagamie County Court
Commissioner Mary F. Coughlin (“Commissioner”) ordered Orion
Construction to appear for a supplemental proceeding pursuant to
§ 816.03(1)(b).10 The Commissioner’s order required Orion
7 The judgment was comprised of $480,231.50 in damages and
$16,007.67 in statutory interest, totaling $496,239.17.
8 Black’s defines “winding up” as “[t]he process of settling
accounts and liquidating assets in anticipation of . . . a
corporation’s dissolution.” Black’s Law Dictionary 1738 (9th
ed. 2009).
9 Wis. Stat. § 806.24(2) states, in relevant part: “A copy
of any foreign judgment authenticated in accordance with the act
of congress or the statutes of this state may be filed in the
office of the clerk of circuit court of any county of this
state.”
10 Wis. Stat. § 816.03(1)(b) states: “A supplemental court
commissioner upon application of a judgment creditor shall order
any judgment debtor to appear before the supplemental court
commissioner and answer concerning the judgment debtor’s
property at a time and place specified in the order . . . .”
Black’s defines “supplementary proceeding” as “[a]
proceeding held in connection with the enforcement of a
judgment, for the purpose of identifying and locating the
debtor’s assets available to satisfy the judgment.” Black’s Law
Dictionary 1324 (9th ed. 2009); see 6 Jay E. Grenig, Wisconsin
Pleading and Practice § 44:83 (5th ed. 2010).
No. 2009AP3029
5
Construction to supply Crown Castle with Orion Construction’s
“tax records for the years 2005, 2006, and 2007, and copies of
all books, records[,] and documents pertaining to the company’s
assets, financial affairs[,] and transactions . . . .”
¶7 Orion Construction responded to the Commissioner’s
order by providing Larson’s personal tax returns from 2005,
2006, and 2007, and an accounting spreadsheet showing an account
receivable from Crown Castle in the amount of $210,831. Orion
Construction also provided records indicating that it had no
assets (other than the $210,831 account receivable and less than
$500 dollars in a business banking account), and no outstanding
liabilities.
¶8 Crown Castle, dissatisfied with the information Orion
Construction provided, moved the circuit court to expand the
scope of supplemental examination to “copies of all books,
records, and documents that pertain to the assets, financial
affairs, and transactions for each and every business entity in
which [Larson] has any interest.” The requested order was
issued and subjected Orion Logistics to supplemental examination
by the Commissioner pursuant to Wis. Stat. §§ 816.03 and
816.06.11
C. THE COURT OF APPEALS DECISION
¶9 Orion Logistics appealed the circuit court’s order
subjecting it to supplemental examination. In a published
11 Wis. Stat. § 816.06 states: “At the hearing upon such
order or warrant such judgment debtor may be examined on oath
and testimony on the part of either party may be offered.”
No. 2009AP3029
6
decision, the court of appeals affirmed the circuit court.
Crown Castle USA, Inc. v. Orion Constr. Grp., LLC, 2011 WI App
9, 331 Wis. 2d 74, 794 N.W.2d 272. The court of appeals
considered a single issue: whether Wis. Stat. § 816.06 grants a
judgment creditor the right to compel a non-judgment debtor
third party to testify at a supplemental proceeding.
¶10 The court of appeals determined, based on its prior
holding in Courtyard Condo. Ass’n v. Draper, 2001 WI App 115,
244 Wis. 2d 153, 629 N.W.2d 38, that Wis. Stat. § 816.03 and
§ 816.06 are ambiguous. Crown Castle, 331 Wis. 2d 74, ¶10.12 In
resolving this perceived ambiguity, it concluded that § 816.06
grants a judgment creditor the right to compel a non-judgment
debtor third party to testify at a supplemental proceeding.
Id., ¶12.
¶11 The court of appeals supported its conclusion with the
proposition that “[p]roperty transfers between a judgment debtor
and related business entities present the . . . risk of
fraud . . . .” Id., ¶12. Therefore, the court of appeals
ultimately concluded that court-ordered examination of nonjudgment
debtor third parties provides the only avenue for the
judgment creditor to protect itself against fraud. Id., ¶12.
Orion Logistics then sought review before this court.
III. STANDARD OF REVIEW
12 The court of appeals wrote that “§ 816.03 and § 816.16
remain ambiguous.” Given the fact that “§ 816.16” is not
contained in Wis. Stat. ch. 816, we understand the court of
appeals to have determined that § 816.03 and § 816.06 are
ambiguous.
No. 2009AP3029
7
¶12 This case requires us to construe the supplementary
proceeding statutes found in Wis. Stat. ch. 816. The
interpretation of a statute is a question of law that we review
de novo. Hocking v. City of Dodgeville, 2010 WI 59, ¶17, 326
Wis. 2d 155, 785 N.W.2d 398. We interpret statutes
independently, but benefit from both our prior analyses and that
of the lower courts. State v. Henley, 2010 WI 97, ¶29, 328
Wis. 2d 544, 787 N.W.2d 350, cert. denied, __ U.S. __, 132
S. Ct. 784 (2011).
IV. STATUTORY INTERPRETATION
¶13 When interpreting a statute, “we begin with the
language of the statute, because it is the language that
expresses the legislature’s intent.” Hocking, 326 Wis. 2d 155,
¶18 (citing State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, ¶¶44-45, 271 Wis. 2d 633, 681 N.W.2d 110).
“Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
meaning.” Kalal, 271 Wis. 2d 633, ¶45. We attempt to give
reasonable effect to every word, avoiding both surplusage and
absurd or unreasonable results. Id., ¶46; see also Hocking, 326
Wis. 2d 155, ¶18.
¶14 In addition to the language of the statute, “scope,
context, and purpose are perfectly relevant to a plain-meaning
interpretation of an unambiguous statute.” Kalal, 271
Wis. 2d 633, ¶48. So too is statutory history. Richards v.
Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749
No. 2009AP3029
8
N.W.2d 581 (“A review of statutory history is part of a plain
meaning analysis.”); see also Heritage Farms, Inc. v. Markel
Ins. Co., 2009 WI 27, ¶22, 316 Wis. 2d 47, 762 N.W.2d 652 (“By
analyzing the changes the legislature has made over the course
of several years, we may be assisted in arriving at the meaning
of a statute.”) (citation omitted). Accordingly, we examine the
language, context, and history of the statute here while
undertaking our plain meaning analysis.
V. DISCUSSION
¶15 This case requires us to interpret Wis. Stat.
§ 816.06, Wisconsin’s supplemental proceeding statute, in order
to determine whether it grants a judgment creditor the right to
compel a non-judgment debtor third party to testify at a
supplemental proceeding. Originally codified in 1856,
Wisconsin’s supplemental proceeding legislation replaced the
creditor’s bill,13 the common law proceeding that allowed a
13 A “creditor’s bill” is “[a]n equitable suit in which a
judgment creditor seeks to reach property that cannot be reached
by the process available to enforce a judgment.” Black’s Law
Dictionary 426 (9th ed. 2009).
No. 2009AP3029
9
judgment creditor to enforce a judgment.14 Clark v. Bergenthal,
52 Wis. 103, 107, 8 N.W. 865 (1881). Because the supplemental
proceedings statute provided a new right to judgment creditors
that did not exist at common law, it is a statutory right.15
Holton v. Burton, 78 Wis. 321, 328, 47 N.W. 624 (1890) (“[T]he
right to institute and carry on supplementary proceedings is a
mere statutory right, and may be taken away or modified at the
pleasure of the legislature.”); see also Clark, 52 Wis. at 107.
¶16 Statutory rights——like those at issue in this case——
are rights granted by the legislature, not the United States or
Wisconsin constitutions. See State ex rel. R. v. Schmidt, 63
Wis. 2d 82, 89, 216 N.W.2d 18 (1974); cf. Harvot v. Solo Cup
Co., 2009 WI 85, ¶50, 320 Wis. 2d 1, 768 N.W.2d 176. Because
there is no constitutional guarantee to a statutory right, “it
14 See In re Remington, 7 Wis. 541 (*643), 547 (*649)
(1858) (“It is very evident from an examination of the code——and
it was so conceded on the argument of this case——that the remedy
given by this provision, and other sections following in the
same chapter, was intended as a substitute for a creditor’s bill
. . . .”); Graham v. La Crosse & Milwaukee R.R. Co., 10 Wis. 403
(*459), 406 (*462) (1860) (“[T]he proceedings supplemental to
execution, established by the code, are a substitute therefor,
and constitute the only manner of obtaining the relief formerly
had under a creditor’s bill.”); Seymour v. Briggs, 11 Wis. 204
(*196), 213 (*204) (1860) (“[T]he remedy by creditor’s bill was
abrogated by the code, and that the proceedings supplementary to
an execution provided by that enactment, were intended as a
substitute therefor.”); Second Ward Bank v. Upmann, 12 Wis. 555
(*499), 561-562 (*504-05) (1860) (holding that the statutes
abrogated the common law).
15 In Wisconsin, supplemental proceedings are a creature of
statute, not of the common law. Clark v. Bergenthal, 52
Wis. 103, 107, 8 N.W. 865 (1881); see 6 Jay E. Grenig, Wisconsin
Pleading and Practice § 44:83 (5th ed. 2010).
No. 2009AP3029
10
is for the legislature, not the courts, to prescribe” the scope
of the right. Schmidt, 63 Wis. 2d at 89; see Harvot, 320
Wis. 2d 1, ¶50; In re Ogg’s Estate, 262 Wis. 181, 186, 54
N.W.2d 175 (1952); Relyea v. Tomahawk Paper & Pulp Co., 102
Wis. 301, 304, 78 N.W. 412 (1899) (“[M]ere statutory rights may
be conferred upon such conditions as in the wisdom of the
legislature may seem best, and the conditions may be changed
from time to time, even as to existing rights, or such rights
may be taken away entirely, at the legislative will.”).
Therefore, we recognize statutory rights only where the
legislature has, through the legislative process, specifically
acted to create them. In re Fidelity Assurance Ass’n, 247
Wis. 619, 624, 20 N.W.2d 638 (1945) (holding that a statutory
right is “a creature of the legislature, and does not exist
where the legislature has not acted”).
¶17 When interpreting statutory rights, we have previously
declined to undertake “[a]d hoc judicial discovery of implied
statutory rights,” because such an approach would impinge on the
purview of the legislature and “would not yield a meaningful
legal test that could carry over from case to case.” Harvot,
320 Wis. 2d 1, ¶50 (“[D]iscover[ing] an implied statutory right
. . . where the legislature has not prescribed such a right and
where the constitution does not afford such a right would open a
can of worms.”). Therefore, “this court will not legislatively
engraft a judicially conceived . . . right” onto a statute.
Schmidt, 63 Wis. 2d at 89.
No. 2009AP3029
11
¶18 Accordingly, our analysis of Wisconsin’s supplemental
proceeding statute is now, as it has been since 1856, focused
exclusively on the statute that provides creditors the statutory
right to supplemental proceedings. In interpreting Wis. Stat.
§ 816.06, we confine ourselves to its language, context, and
statutory history to determine the scope of the statutory right
that Wis. Stat. § 816.06 confers. Considering each facet of
this plain meaning analysis in turn, we conclude that § 816.06
does not grant a judgment creditor the right to compel a nonjudgment
debtor third party to testify at a supplemental
proceeding.
A. THE LANGUAGE OF WIS. STAT. § 816.06 DOES NOT GRANT A JUDGMENT
CREDITOR THE RIGHT TO COMPEL A NON-JUDGMENT DEBTOR THIRD PARTY
TO TESTIFY AT A SUPPLEMENTAL PROCEEDING
¶19 The question before us is whether a judgment creditor
has the right to compel a non-judgment debtor third party to
testify at a supplemental proceeding. That question requires us
to evaluate the only section of the supplemental proceeding
statute, ch. 816, that explains the procedure for the
examination of parties and witnesses. The language of this
section, Wis. Stat. § 816.06, states that testimony may be
offered on behalf of either party at a supplemental proceeding.
Specifically, it provides:
Examination of debtor and witnesses. At the hearing
upon such order or warrant such judgment debtor may be
examined on oath and testimony on the part of either
party may be offered.
No. 2009AP3029
12
Wis. Stat. § 816.06. It is clear that the only compelled
testimony expressly authorized by this provision is that of the
judgment debtor. No language in § 816.06 expands that authority
to include the compelled testimony of a non-judgment debtor
third party. Indeed, no mention whatsoever is made of such a
party.
¶20 The circuit court determined that Larson could be
called to testify about not only Orion Construction, but also
Orion Logistics. The circuit court relied on the fact that
Larson owned both Orion Construction and Orion Logistics in
making its decision to compel Orion Logistics to testify at the
supplemental proceeding. However, this reliance was not
grounded in a sound interpretation of Wis. Stat. § 816.06. In
particular, it disregarded our admonition that “a corporation is
treated as an entity separate from its shareholders and that
separateness is not to be lightly disregarded.” Rasmussen v.
GMC, 2011 WI 52, ¶25, 335 Wis. 2d 1, 803 N.W.2d 623 (citing
Consumer’s Co-op v. Olsen, 142 Wis. 2d 465, 474, 419 N.W.2d 211
(1988)).
¶21 We acknowledge that Wis. Stat. § 816.06 must allow
testimony by at least some individuals who are not named
parties. If the statute allowed for testimony by only the
parties to the action, an absurd result would follow:
corporations would be permitted to testify but would then find
it impossible to do so. Section 816.03(1)(a) permits a judgment
creditor to compel corporations to testify. However, because
corporations are legal fictions, Milwaukee Toy Co. v. Indus.
No. 2009AP3029
13
Comm’n of Wisconsin, 203 Wis. 493, 495, 234 N.W. 748 (1931),
they are incapable of testifying except through their officers
and agents. See Nekoosa-Edwards Paper Co. v. News Pub. Co., 174
Wis. 107, 119, 182 N.W. 919 (1921) (“A corporation can act only
through its officers and agents.”); see also Wilson v. United
States, 221 U.S. 361, 377 (1911) (“As the corporation can only
act through its agents, the courts will operate upon the agents
through the corporation.”) (citation omitted). Consequently,
some individual must testify on behalf of the corporation.
Nekoosa-Edwards Paper Co., 174 Wis. at 119. Therefore, if we
were to interpret § 816.06 to preclude testimony by anyone other
than the parties to the underlying action, a corporation could
never “appear” at a supplemental proceeding, despite
§ 816.03(1)(b) expressly authorizing them to do so. Such an
interpretation would create internal incoherence in ch. 816,
thereby undermining the efficacy of the chapter.
¶22 We must interpret Wis. Stat. § 816.06 to allow for at
least some testimony by individuals who are not named parties
because failure to do so would undermine the efficacy of § 816
where the judgment debtor is a corporation. Clearly, a judgment
debtor corporation cannot merely decline to provide testimony
simply because it is a corporation. See § 816.03(1)(a).
Instead, it must give testimony the only way it can: through
some representative of the corporation. Cf. Nekoosa-Edwards
Paper Co., 174 Wis. at 119. Supplemental proceedings are
designed to provide full discovery of that property belonging to
the judgment debtor that could be used to satisfy the judgment.
No. 2009AP3029
14
Courtyard, 244 Wis. 2d 153, ¶12. Therefore, the judgment
creditor must be able to compel testimony from individuals who,
because of their relationship to the judgment debtor
corporation, have information relevant to the judgment debtor’s
property that could satisfy the judgment.
¶23 These individuals may include corporate officers,
employees, former employees, and similarly situated individuals
who have information relevant to the judgment debtor
corporation’s assets. The scope of testimony these individuals
may provide, however, is limited to that information relevant to
the judgment debtor corporation, that is, the actual entity that
is subject to the supplemental proceeding. Accordingly, we
conclude that because ch. 816 states that corporations may be
judgment debtors, the language of § 816.06 allows for compelled
testimony from some individuals who are not named parties to the
action.
¶24 That does not mean, however, that Wis. Stat. § 816.06
necessarily allows for a judgment creditor to compel the
testimony of a non-judgment debtor third party at a supplemental
proceeding. No language in Wis. Stat. § 816.06 grants this
right to the judgment creditor. Therefore, to accept Crown
Castle’s argument, we would have to conclude that even though
the statute is silent, it nonetheless confers a right on the
judgment creditor to compel testimony from non-judgment debtor
third parties.
¶25 We cannot interpret the silence of the statute to
create a statutory right. Instead, we conclude that § 816.06
No. 2009AP3029
15
does not grant judgment creditors the right to compel the
testimony of a non-judgment debtor third party at a supplemental
proceeding. This is so because courts are not entitled to grant
or expand statutory rights based solely on a statute’s silence.
See Harvot, 320 Wis. 2d 1, ¶50 (holding that the courts should
not undertake “[a]d hoc judicial discovery of implied statutory
rights”); Relyea, 102 Wis. at 303-04 (holding that statutory
rights “are entirely the subject of legislative discretion,” not
judicial discretion). Therefore, because § 816.06 confers a
statutory right to examine witnesses, but does not confer as a
part of that right the power to compel their testimony, we
decline to infer from the statute’s silence that it grants a
judgment creditor the right to compel a non-judgment debtor
third party to testify at a supplemental proceeding. Were we to
do so, we would legislatively create a right where the
legislature chose to remain silent.16
16 Crown Castle offers an alternative to our interpretation
of the statute. It argues that the final phrase of Wis. Stat.
§ 816.06, “testimony on the part of either party may be
offered,” when viewed in conjunction with the heading
“[e]xamination of debtor and witnesses,” grants a judgment
creditor the right to compel a non-judgment debtor third party
to testify at a supplemental proceeding. However, we are not
bound by the content of statutory headings. See Wis. Stat.
§ 990.001(6) (“The titles to subchapters, sections, subsections,
paragraphs and subdivisions of the statutes and history notes
are not part of the statutes.”); Blum v. 1st Auto & Cas. Ins.
Co., 2010 WI 78, ¶21 n.3, 326 Wis. 2d 729, 786 N.W.2d 78 (“In
statutory construction, the title or heading of a statute is not
part of the statute itself.”).
No. 2009AP3029
16
¶26 Accordingly, we conclude that the language of Wis.
Stat. § 816.06 does not grant a judgment creditor the right to
compel a non-judgment debtor third party to testify at a
supplemental proceeding.
B. THE CONTEXT OF WIS. STAT. § 816.06 CONFIRMS OUR CONCLUSION
THAT IT DOES NOT GRANT A JUDGMENT CREDITOR THE RIGHT TO COMPEL A
NON-JUDGMENT DEBTOR THIRD PARTY TO TESTIFY AT A SUPPLEMENTAL
PROCEEDING
¶27 Although the plain meaning of a statutory provision
may be clear in isolation, we nonetheless review the provision
in the context of surrounding provisions to ascertain its full
meaning. Therefore, we next evaluate Wis. Stat. § 816.06 in the
context of ch. 816.
¶28 The only provision of Wis. Stat. ch. 816 other than
§ 816.06 that mentions testimony on behalf of the parties at a
supplemental proceeding is § 816.11. Section 816.11 states:
Costs, fees. The court or judge may allow to the
judgment creditor or to any party so examined, whether
a party to the action or not, witness’ fees and
disbursements and a fixed sum, in addition, not
exceeding $25, as costs, and require their payment by
order.
Like § 816.06, § 816.11 contains no language that would grant a
judgment creditor the right to compel a non-judgment debtor
third party to testify at a supplemental proceeding.
¶29 The language of § 816.11 is in harmony with our
reading of § 816.06. As the language of § 816.11 indicates,
both the judgment debtor and the judgment creditor have the
opportunity to provide testimony in their favor through
No. 2009AP3029
17
witnesses. This corresponds with our interpretation of
§ 816.06, which explicitly states that “testimony on the part of
either party may be offered.” (emphasis added). Again, though,
the ability of a party to offer testimony in no way implies the
power to compel it.
¶30 Therefore, we conclude Wis. Stat. § 816.11 offers no
language that conflicts with, controverts, or compels a
different interpretation of the language of § 816.06 than the
one we reached. Simply put, neither the language of § 816.11
nor that of § 816.06, nor any other part of ch. 816, supports
Crown Castle’s assertion that § 816.06 grants a judgment
creditor the right to compel a non-judgment debtor third party
to testify at a supplemental proceeding.
¶31 Accordingly, we conclude that Wis. Stat. § 816.06,
even when viewed in conjunction with § 816.11, does not grant a
judgment creditor the right to compel a non-judgment debtor
third party to testify at a supplemental proceeding.
C. THE STATUTORY HISTORY OF CH. 816 CONFIRMS OUR CONCLUSION THAT
WIS. STAT. § 816.06 DOES NOT GRANT A JUDGMENT CREDITOR THE RIGHT
TO COMPEL A NON-JUDGMENT DEBTOR THIRD PARTY TO TESTIFY AT A
SUPPLEMENTAL PROCEEDING
¶32 We turn next to the statutory history of ch. 816, and
determine that prior versions support our construction of the
language and context of § 816.06.
1. PRE-1935 SUPPLEMENTAL PROCEEDINGS
¶33 The statutory provisions that eventually became
chapter 816 first appeared in Wisconsin in an 1856 statute.
No. 2009AP3029
18
That statute, Wis. Stat. ch. 120, § 202 (1856), was “adopted
with the intent to substitute supplementary proceedings for the
relief formerly obtainable in equity by a creditor’s bill.”17
This enactment granted a judgment creditor the right to compel a
“judgment debtor to appear and answer concerning his property
before [a] judge,” and stated that “either party may examine
witnesses on his behalf, and the judgment debtor may be examined
in the same manner as a witness.” Another section of the 1856
statute, Wis. Stat. ch. 120, § 206 (1856), authorized the
circuit court to require witnesses to “appear and testify . . .
in the same manner as upon a trial of an issue.”
2. THE 1935 REVISIONS
¶34 With minor revisions, the sections in the supplemental
proceeding statute relating to the examination of witnesses
remained the same until 1935.18 In that year, the Wisconsin
17 Robert S. Moss, Supplementary Proceedings in Wisconsin,
23 Marq. L. Rev. 49, 49 (1939) (citing Remington, 7 Wis. at 547
(*649); Graham, 10 Wis. at 406 (*462); Seymour, 11 Wis. at 213
(*204); Clark, 52 Wis. at 107.
18 Portions of the common law creditor’s bill that allowed
the judgment creditor to proceed against any individual in a
supplemental proceeding were added in the 1860 version of the
Wisconsin statute. Wis. Stat. ch. 303, § 3029 (1860). These
provisions were repealed in 1878 by Wis. Stat. ch. 131, § 3030
(1878), and are not relevant to our examination of the statutory
history of Wis. Stat. § 816.06 (2007-08).
No. 2009AP3029
19
legislature significantly amended the supplementary proceeding
statutes. See § 271, ch. 541, Laws of 1935.
¶35 This amendment specifically deleted the prior language
stating that “witnesses may be required to appear and testify on
the part of either party in the same manner as upon the trial of
an issue.” § 271, ch. 541, Laws of 1935; Wis. Stat. § 273.06
(1933) (emphasis added).19 In removing this language, the
legislature removed the only provision from the supplemental
proceeding statutes that granted a judgment creditor the right
to compel a non-judgment debtor third party to testify at a
supplemental proceeding. See § 271, ch. 541, Laws of 1935; see
also Wis. Stat. § 273.06 (1935).
¶36 The language that remained after the legislature
amended Wis. Stat. § 273.06 (1933) is identical to the language
contained in § 816.06 (2007-08). See Wis. Stat. § 273.06
By 1935, the legislature had renumbered the Wisconsin
statutes so that all of the provisions relating to supplemental
proceedings were contained in Wis. Stat. ch. 273. See § 1,
ch. 4, Laws of 1925 (renumbering the Wisconsin Statutes). In
1973, the legislature once again renumbered the statutes. See
Ch. 189, Laws of 1973 (renumbering the Wisconsin Statutes).
Thereby, the supplementary proceedings chapter was once again
renumbered, this time from chapter 273 to chapter 816, the
number it retains today. See Wis. Stat. ch. 816 (2007-08).
19 Compare Wis. Stat. § 273.06 (1933) with Wis. Stat.
§ 273.06 (1935). Section 271, ch. 541, Laws of 1935 removed a
significant amount of additional language from Wis. Stat.
§ 273.06 (1933), none of which is relevant to our analysis.
No. 2009AP3029
20
(1935).20 Therefore, since 1935, Wisconsin’s supplemental
proceeding law has been bereft of any language that would grant
a judgment creditor the right to compel a non-judgment debtor
third party to testify at a supplemental proceeding.
3. THE RESULT OF THE 1935 REVISIONS
¶37 We conclude that the legislature has deliberately
removed the statutory right of judgment creditors to compel a
non-judgment debtor third party to testify at a supplemental
proceeding. As a general matter, courts may not find a
statutory right in legislative silence alone. See Harvot, 320
Wis. 2d 1, ¶50, (holding that the courts should not undertake
“[a]d hoc judicial discovery of implied statutory rights”).
This is so because statutory rights “are entirely the subject of
legislative discretion,” not judicial discretion. Relyea, 102
Wis. at 303-04. In light of this well-established law, we
cannot sustain the right claimed by Crown Castle. Indeed, we
are especially reluctant to detect a right where the pertinent
statute is not only silent on the issue, but where the
legislature has in fact expressly removed the precise right the
court is asked to grant. Clearly, the legislature could have
continued to grant power to courts to compel third party
witnesses to testify in supplemental proceedings, but it
20 The legislature amended Wis. Stat. § 273.06 to read: “At
the hearing upon such order or warrant such judgment debtor may
be examined on oath and testimony on the part of either party
may be offered.” § 271, ch. 541, Laws of 1935; see Wis. Stat.
§ 273.06 (1935). Compare Wis. Stat. § 273.06 (1935) with Wis.
Stat. § 816.06 (2007-08).
No. 2009AP3029
21
specifically chose to remove that power. Thus, if we were to
confirm the existence of the right in question, we would be
effectively writing back into the statute language the
legislature expressly removed. This we may not do. See
Schmidt, 63 Wis. 2d at 89; see also C. Coakley Relocation Sys.,
Inc. v. City of Milwaukee, 2008 WI 68, ¶24 310 Wis. 2d 456, 750
N.W.2d 900 (declining to insert a word into a “plainly worded
and easily understood statute”).
¶38 Accordingly, we conclude that the plain meaning of
Wis. Stat. § 816.06 is clear: the language, context, and
statutory history of Wis. Stat. § 816.06 demonstrate that a
judgment creditor does not have the right to compel a nonjudgment
debtor third party to testify at a supplemental
proceeding.
D. OUR HOLDING THAT WIS. STAT. § 816.06 DOES NOT GRANT A
JUDGMENT CREDITOR THE RIGHT TO COMPEL A NON-JUDGMENT DEBTOR
THIRD PARTY TO TESTIFY AT A SUPPLEMENTAL PROCEEDING IS IN
HARMONY WITH OUR PRIOR HOLDINGS
¶39 Turning from the plain meaning analysis of Wis. Stat.
§ 816.06, we review prior Wisconsin cases regarding supplemental
proceedings. Few cases have addressed supplemental proceedings
at all, much less the precise question presented by this case.
However, a review of the limited prior jurisprudence on
supplemental proceedings in Wisconsin reveals that it is all in
harmony with our holding that the judgment creditor has no right
to compel a non-judgment debtor third party to testify at a
No. 2009AP3029
22
supplemental proceeding. We now review the two cases that form
the basis of the jurisprudence in this area.
1. HEILBRONNER
¶40 We first review our prior holding in Heilbronner v.
Levy, 64 Wis. 636, 26 N.W. 113 (1885). While the facts of
Heilbronner are distinct from the facts of the present case, it
was one of our first cases to address issues relating to
individuals examined at supplemental proceedings. In
Heilbronner, the judgment debtor and named defendant was an
individual, not a corporation. Id. The single issue in the
case was whether a judgment debtor could be compelled to testify
about the profitability of a corporation of which he was part
owner.21 Heilbronner, 64 Wis. at 636. The testimony the
judgment creditor wished to compel was highly relevant to the
financial condition of the judgment debtor, because the
profitability of the corporation would have a direct effect on
the value of his ownership rights. Brief of Appellant at 5,
Heilbronner, 64 Wis. 636.
21 This question was part of a larger string of questions
that related to the judgment debtor’s monetary involvement with
the corporation. The precise question the judgment debtor
refused to answer was: “Do you know whether the company has made
a profit, or not, in the last year?” Brief of Appellant at 5,
Heilbronner v. Levy, 64 Wis. 636, 26 N.W. 113 (1885). The
commissioner immediately overruled an objection by the judgment
debtor’s counsel, ruling that “the object and effect of the
question and answer is to ascertain and determine the value of
this share and the amount of any dividends accumulated.” Id.
Because the question related to the value of the judgment
debtor’s assets, the commissioner concluded that it was “a
proper one.” Id.
No. 2009AP3029
23
¶41 Unlike the present case, the judgment creditor in
Heilbronner did not seek to compel the testimony of a third
party at the supplemental proceeding incident to that case. As
the respondent’s brief indicates, the point of questioning the
judgment debtor was to determine the value of his property, not
to undertake an examination of the corporation. Brief of
Respondent at 6, Heilbronner, 64 Wis. 636.
¶42 Crown Castle suggests that we should interpret the
Heilbronner opinion to allow a court to compel a non-judgment
debtor third party to testify at a supplemental proceeding.
Crown Castle relies upon the single statement that “[u]nless a
comprehensive and searching examination be allowed, an artful
debtor might defeat the discovery sought” to support its
assertion. Heilbronner, 64 Wis. at 637. While we agree with
the Heilbronner court that supplemental proceedings should
entail a comprehensive and searching examination of the judgment
debtor, we cannot agree with Crown Castle that this
“comprehensive and searching” examination should extend to nonjudgment
debtor third parties. To do so would take the language
in Heilbronner out of context and apply it to a very different
fact situation.22
22 Commentators have questioned the scope of Heilbronner’s
holding. See Robert Pasch, Wisconsin Collection Law § 16:4 (2d
ed. 2006) (stating that Heilbronner’s holding is unclear).
However, they have also recognized that no case has provided a
clear statement supporting the assertion that § 816.06 grants a
judgment creditor the right to compel a non-judgment debtor
third party to testify at a supplemental proceeding. See, e.g.,
id.
No. 2009AP3029
24
¶43 The issue in Heilbronner was the scope of examination
to which a judgment debtor may be subjected, not whether a
judgment creditor has the right to compel a non-judgment debtor
third party to testify at a supplemental proceeding. Therefore,
Heilbronner’s applicability is limited to questions relating to
the scope of examination of the judgment debtor; the decision
says nothing about who may be compelled to testify at a
supplemental proceeding.23
¶44 Accordingly, we conclude that Heilbronner does not
allow a judgment creditor to compel the examination of a nonjudgment
debtor third party at a supplemental proceeding.
2. COURTYARD
¶45 The only published Wisconsin case that has previously
interpreted the current version of Wis. Stat. § 816.06 is
Courtyard. In that case, the court of appeals addressed whether
the spouse of a judgment debtor could be compelled to testify at
a supplemental proceeding. Id., ¶1. The court of appeals’
analysis relied on the interplay between § 816.06 and
23 It is worth noting that Heilbronner was decided under a
different statutory scheme that would have allowed the judgment
creditor to compel a non-judgment debtor third party to testify
at a supplemental proceeding. Wis. Stat. ch. 131, § 3030
(1883). As such, even if Heilbronner had stated that third
parties could be compelled to testify, it would not change our
analysis, because the statutory scheme has since changed. See
Wis. Stat. § 816.06 (2007-08). Regardless, Heilbronner
addressed neither the supplementary proceeding statute, nor
whether a judgment creditor may compel a non-judgment debtor
third party to testify at a supplemental proceeding, and it
therefore has no bearing on this case.
No. 2009AP3029
25
§ 803.045(3),24 and it ultimately concluded that § 816.06 is
ambiguous when viewed in juxtaposition with § 803.045(3) and
§ 765.55.25 Courtyard, 244 Wis. 2d 153, ¶¶11, 12. To
“harmonize” these statutes and “to give each full force and
effect,” the court of appeals held that a court may compel the
spouse of a judgment debtor to testify at a supplemental
proceeding. Id., ¶¶13, 16.
¶46 The court of appeals holding was particularly narrow.
It stated:
Where, as in this case, the judgment debtor pleads
ignorance when asked about marital property during a
supplementary examination, the right of the judgment
creditor to satisfy a judgment from marital property
would be frustrated if the creditor could not examine
the spouse. Without examining the spouse of the
judgment debtor, the judgment creditor would lack the
24 Wis. Stat. § 803.045(3) specifically relates to the
satisfaction of spousal obligations. It states: “After
obtaining a judgment, a creditor may proceed against either or
both spouses to reach marital property available for
satisfaction of the judgment.” Id.
25 Wis. Stat. § 765.55 states, in relevant part:
An obligation incurred by a spouse during marriage,
including one attributable to an act or omission
during marriage, is presumed to be incurred in the
interest of the marriage or the family. . . . An
obligation incurred by a spouse in the interest of the
marriage or the family may be satisfied only from all
marital property and all other property of the
incurring spouse.
§ 765.55(1) & (2)(b). This statutory provision is part of
Wisconsin’s Marital Property Act. See generally Palma Maria
Forte, Comment, The Wisconsin Marital Property Act: Sections in
Need of Reform, 79 Marq. L. Rev. 859 (1996).
No. 2009AP3029
26
information needed to proceed against the spouse under
Wis. Stat. § 803.045 to reach marital property.
Id., ¶15 (emphasis added).
¶47 Yet Crown Castle argues Courtyard’s holding is broad,
and applies to more than marital property. It argues that
Courtyard sets forth a general rule that § 816.06 grants a
judgment creditor the right to compel a non-judgment debtor
third party to testify at a supplemental proceeding. We
disagree. Crown Castle’s interpretation strains the language of
Courtyard. In that decision, the court of appeals clearly
distinguished cases that involve marital property from cases
that involve all other types of property.26 Therefore, the
26 The plaintiff-appellant in Courtyard did not even attempt
to brief an argument that § 816.06 grants a judgment creditor
the right to compel testimony from any non-judgment debtor third
party at a supplemental proceeding. Brief of Plaintiff-
Appellant at 11, Courtyard Condo. Ass’n v. Draper, 2001 WI App
115, 244 Wis. 2d 153, 629 N.W.2d 38 (No. 00-1817). Instead, it
focused on the narrow issue before the court, conceding that
Courtyard presented a conflict between § 816.06 and
§ 803.045(3), not an opportunity to expand the scope of
§ 816.06. See Brief of Plaintiff-Appellant at 11, Courtyard,
244 Wis. 2d 153 (No. 00-1817).
The fact that the court of appeals focused on the interplay
between Wis. Stat. § 816.06 and § 803.045 only strengthens our
holding. At no point did the court of appeals determine that
§ 816.06, standing alone, grants a judgment creditor the right
to compel a non-judgment debtor third party to testify at a
supplemental proceeding. See generally Courtyard, 244
Wis. 2d 153.
No. 2009AP3029
27
decision applies only where the judgment creditor seeks to
satisfy its judgment out of marital property.27
¶48 Accordingly, we conclude that in correctly deciding
Courtyard, the court of appeals created a narrow rule to
harmonize two statutes that were otherwise in conflict, but did
not create a general rule that § 816.06 grants a judgment
creditor the right to compel a non-judgment debtor third party
to testify at a supplemental proceeding.28
VI. CONCLUSION
¶49 We conclude that Wis. Stat. § 816.06 does not grant a
judgment creditor the right to compel a non-judgment debtor
third party to testify at supplemental proceedings. We base our
conclusion on the language of the statute, on its context and
statutory history, and on our prior holdings. Because Crown
27 Courtyard, 244 Wis. 2d 153, ¶18 (“Harmonizing the
statutes involved to permit the supplementary examination of the
judgment debtor’s spouse gives full force and effect to the
tenor of the statutes allowing the judgment creditor to reach
marital property.”) (emphasis added)
28 We emphasize that our holding does not leave a judgment
creditor without remedy against a non-judgment debtor third
party who may be concealing the property of a judgment debtor.
A receiver could be appointed under Wis. Stat. § 816.04, see
generally Mann v. Bankruptcy Estate of Badger Lines, Inc., 224
Wis. 2d 646, 590 N.W.2d 270 (1999), and the receiver could
proceed against a non-judgment debtor third party in possession
of the judgment debtor’s property. Wis. Stat. § 816.08. The
receiver could also proceed under Wis. Stat. ch. 242 to undo a
fraudulent transfer by the judgment debtor. See § 242.07.
Alternatively or additionally, the judgment creditor could
commence a garnishment action against the non-judgment debtor
third party under § 812.01(1), or proceed under § 128.08
(discussing the appointment of a receiver).
No. 2009AP3029
28
Castle had no right, under § 816.06, to compel Orion Logistics
to testify at a supplemental proceeding, we reverse the court of
appeals decision and remand the cause to the circuit court for
further proceedings.
By the Court.—The decision by the court of appeals is
reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.
No. 2009AP3029.ssa
1
¶50 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The
majority opinion is an anti-creditor opinion that emasculates
Chapter 816 of the statutes. It empowers debtors to hide their
assets from creditors who have procured valid, enforceable
judgments. It will hinder the ability of all judgment creditors
(individuals and corporations alike) to recover payment from all
judgment debtors (individuals and corporations alike).
¶51 The court of appeals, in contrast to the majority
opinion, got it right: Circuit courts and court commissioners
have authority under Wis. Stat. §§ 816.03 and 816.06 to require
a third party to submit to a supplemental examination so that a
judgment creditor can discover assets of a debtor.
¶52 The text of Wis. Stat. § 816.06, the purpose of
supplemental proceedings, and the statutory history of § 816.06
lead to the conclusion that the statutes permit the compelled
examination of third parties who have information about the
judgment debtor’s property.
¶53 Text. Wisconsin Stat. § 816.03(1) provides that
circuit courts and court commissioners have the authority under
certain circumstances to order a judgment debtor to appear and
answer concerning the judgment debtor’s property.1 Section
816.06 further states that “[a]t the hearing upon such order or
warrant such judgment debtor may be examined on oath and
1 Wis. Stat. § 816.03(1)(a) (“When an execution against
property has . . . been returned unsatisfied . . . the court
. . . shall, upon motion of the judgment creditor, order such
judgment debtor, whether an individual, firm, corporation or
other association, to appear before the court or judge and
answer concerning the judgment debtor’s property . . . .”).
No. 2009AP3029.ssa
2
testimony on the part of either party may be offered.” (emphasis
added).
¶54 The court of appeals has declared that “the last
phrase of Wis. Stat. § 816.06, ‘testimony on the part of either
party may be offered,’ creates an ambiguity.”2
¶55 Emphasizing the word “may,” the majority appears to
conclude that the phrase “testimony on the part of either party
may be offered” allows either party to present testimony through
witnesses, but only if the witness voluntarily agrees to
testify. Majority op., ¶26. Thus, the majority acknowledges
that Wis. Stat. § 816.06 allows third parties to testify at
supplemental proceedings, but concludes that the parties, the
circuit court judge, and the court commissioner have no
authority to compel third-party testimony.
¶56 The majority purports to conduct a “plain meaning
analysis,” ¶18, but then simply asserts that its conclusion is
“clear.” Majority op., ¶19. Insisting that the holding is
driven by the statute’s “plain” language and meaning and
insisting that the answer is clear does not make the language or
meaning of the statute any more plain or the majority opinion
any more persuasive. The statute’s language and meaning were
not so clear to the court of appeals in Courtyard Condominium
Ass’n, Inc. v. Draper, 2001 WI App 115, ¶9, 244 Wis. 2d 153, 629
N.W.2d 38,3 or to the author of the supplemental proceedings
2 Courtyard Condo. Ass’n, Inc. v. Draper, 2001 WI App 115,
¶9, 244 Wis. 2d 153, 629 N.W.2d 38.
3 See ¶54, supra.
No. 2009AP3029.ssa
3
chapter of the Wisconsin Practice Series.4 The court of appeals
and the experienced commentator both concluded that Wis. Stat.
§ 816.06 was ambiguous and interpreted the provision to allow
witnesses to be compelled.
¶57 The word “may” in the phrase “testimony on the part of
either party may be offered” has nothing to do with whether
witnesses may be compelled to testify. The word “may” means
that a party may call witnesses, but is not required to do so.
It is not mandatory for parties to call witnesses to offer
testimony; hence, the legislature provided that testimony “may”
be offered.5 The majority’s reliance on the word “may” in Wis.
Stat. § 816.06 is misplaced.
¶58 I would hold that the phrase “testimony on the part of
either party may be offered” allows either party to call third
parties to testify. The subpoena statutes applicable to special
proceedings apply to chapter 816 and allow the circuit court
judge or court commissioner to compel witnesses to appear.
¶59 Purpose. Although the majority correctly acknowledges
that a statute’s purpose should guide this court’s “plain
meaning” interpretation, majority op., ¶14, the majority
opinion’s interpretation is at odds with the statute’s purpose.
4 See ¶77, infra.
5 Cf. Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26,
¶37, ___ Wis. 2d ___, ___ N.W.2d ___ (recognizing that the word
“may” in Wis. Stat. § 26.21(1) allows, but does not require,
property owners whose property is damaged by forest fires to
bring a civil action to recover double damages).
No. 2009AP3029.ssa
4
¶60 The purpose of chapter 816 of the Wisconsin Statutes
is to help judgment creditors when their judgments go
unsatisfied. It provides “a post-judgment discovery procedure
used where the judgment creditor is uncertain of the nature,
location, extent, and amount of the debtor’s property. . . . In
most instances without the information obtained at a
supplemental examination, it is very difficult to discover the
debtor’s non-exempt property.”6
¶61 Interpreting Wis. Stat. § 816.06 to compel third
parties to submit to examination furthers the purpose of
supplemental proceedings, while the majority’s interpretation
undermines it.
6 See Robert A. Pasch, Wisconsin Collection Law § 16:1 (2d
ed. 2006).
Long ago, this court explained that supplemental
proceedings exist because “[u]nless a comprehensive and
searching examination be allowed, an artful debtor might defeat
the discovery sought.” Heilbronner v. Levy, 64 Wis. 636, 637,
26 N.W. 113 (1885).
See also Eclipse Mfg. Co. v. U.S. Compliance Co., 886
N.E.2d 349, 355 (Ill. App. 2007) (“[The supplementary proceeding
statute] provides a mechanism by which a judgment creditor may
initiate supplementary proceedings, against a judgment debtor or
a third party, to discover the assets of a judgment
debtor . . . . [The statute] is to be liberally
construed . . . .”).
See also 30 Am. Jur. 2d Executions § 557 (“[Supplemental
proceedings] address the circumstance where vital information
regarding assets which ought to be subjected to the lien or
discharge of a judgment is in the hands of third persons, and
provide methods by which a judgment creditor may discover assets
belonging to the judgment debtor in the possession of those
third parties . . . .”).
No. 2009AP3029.ssa
5
¶62 The majority allows judgment creditors to call
witnesses who will voluntarily testify but not witnesses who
must be compelled to provide relevant information. Limiting the
statute in this way robs supplemental proceedings of their
effectiveness as a discovery device for judgment creditors with
unsatisfied judgments.
¶63 Judgment creditors have no need to compel witnesses
who will voluntarily provide information. They can obtain this
information outside of the courtroom. Supplemental proceedings
are intended to allow judgment creditors the opportunity to
gather information that would not be made available to them
voluntarily. It seems that many of the witnesses most likely to
have relevant information about the location of assets are those
who would be most likely to prefer that the information remain
unknown——i.e., those whose testimony would need to be compelled.
¶64 The court of appeals in the present case, as in
Courtyard, endeavored to square the text of the statute with its
purpose.
¶65 Courtyard asked whether the spouse of a judgment
debtor could be required to testify in a supplemental proceeding
regarding the fate of marital property.7 A statute allowed the
creditor to proceed against marital property, even if it was
held by a spouse who was not a judgment debtor, and the court of
appeals reasoned that “the right of the judgment creditor to
satisfy a judgment from marital property would be frustrated if
7 Courtyard, 244 Wis. 2d 153, ¶¶1-4.
No. 2009AP3029.ssa
6
the creditor could not examine the spouse.”8 The court of
appeals concluded that unless the judgment debtor’s spouse
testified, “the judgment creditor would lack the information
needed to proceed against the spouse . . . .”9 Specifically, the
court of appeals stated that:
It would be an unreasonable and absurd result to
conclude that although a judgment creditor may reach
all marital property to satisfy a judgment, the spouse
of the judgment debtor does not have to submit to a
supplementary examination in which the amount and
location of marital property could be determined.
Harmonizing the statutes involved to permit the
supplementary examination of the judgment debtor’s
spouse gives full force and [e]ffect to the tenor of
the statutes allowing the judgment creditor to reach
marital property.10
¶66 In the present case, the considerations are similar.
Chapter 242 of the Wisconsin Statutes, the Uniform Fraudulent
Transfer Act, provides a remedy for judgment creditors when
their judgment debtors seek to fraudulently protect their assets
by transferring them to other entities.11 Prior to bringing suit
under chapter 242, a judgment creditor needs evidentiary support
for his or her allegations and factual contentions.12 Thus, if a
judgment debtor pleads ignorance and the judgment creditor is
not able to discover information from other sources, the
8 Id., ¶15.
9 Id.
10 Id., ¶18 (citation omitted).
11 See, e.g., Wis. Stat. § 242.04(1)(a).
12 Wis. Stat. § 802.05(2)(c).
No. 2009AP3029.ssa
7
judgment creditor may not be able to establish the factual basis
necessary to proceed against the third party.
¶67 Just as in Courtyard, the supplemental proceedings in
the present case could have been used to protect the judgment
creditor and counsel from having to risk sanction under
§ 802.05(3) for filing a factually unsupported complaint or to
forgo collection of a valid judgment.13 The majority has
frustrated the purpose of the statute by cutting off an
important avenue of discovery that aids in the collection of
judgments.
¶68 We need not fear an unreasonable, far-flung fishing
expedition by the judgment creditor. The judge or court
commissioner has discretion as to the scope of the examination.14
13 The majority asserts that the court of appeals
disregarded the corporate form by compelling Larson to testify
regarding his two entirely separate corporations. Majority op.,
¶20. This misconstrues the court of appeals’ opinion. It was
the likelihood of relevant evidence being discovered from Orion
Logistics that justified the compelled testimony.
As an aside, although the majority opinion and I refer to
Larson’s businesses as “corporations,” they are limited
liability companies, unique corporate structures governed by
Wis. Stat. ch. 183.
The majority’s preoccupation with “the corporate form”
suggests that it fears affirming the court of appeals would be
damaging to businesses. Yet the majority’s holding undermines
the ability of all judgment creditors (including businesses) to
satisfy judgments against elusive judgment debtors.
14 Heilbronner v. Levy, 64 Wis. 636, 637, 26 N.W. 113
(1885). See also Robert A. Pasch, Wisconsin Collection Law
§ 16:4 (2d ed. 2006) (“A logical conclusion to be drawn from
[Heilbronner] is that the judge or court commissioner has
discretionary power as to who, in addition to the judgment
debtor, may provide testimony and information at a supplemental
examination.”).
No. 2009AP3029.ssa
8
Thus, it would be left to the judge’s or commissioner’s
discretion to determine when a third party’s testimony justifies
the burden that being compelled to testify might place on that
third party.
¶69 Statutory History. Although the majority opinion
relies heavily on the history of ch. 816, examining the
evolution of Wis. Stat. § 816.06 from the 1856 version to its
present form actually reveals that the legislature never
intended the result reached by the majority today.
¶70 As the majority notes, Wis. Stat. ch. 120, §§ 202 and
206 (1856) explicitly allowed judgment creditors to compel the
testimony of third parties. Majority op., ¶33. Section 202
provided that “either party may examine witnesses on his behalf”
and section 206 provided that “[w]itnesses may be required to
appear and testify on any proceedings under this chapter, in the
same manner as upon the trial of an issue.”
¶71 In 1878, after a renumbering, Wis. Stat. ch. 131,
§ 3033 provided that “such judgment debtor may be examined on
oath, and witnesses may be required to appear and testify on the
part of either party, in the same manner as upon the trial of an
issue.” The statute remained substantially in that form save
some renumbering until 1935.
¶72 The majority focuses intently on the 1935 revisions
appearing in chapter 541 of the Laws of Wisconsin. In that
revision, the language of § 273.06 (now § 816.06) was shortened
to its current form: “At the hearing upon such order or warrant
such judgment debtor may be examined on oath and testimony on
No. 2009AP3029.ssa
9
the part of either party may be offered.” The caption and text
that emerged from the 1935 revisions are identical to the
current caption and text of Wis. Stat. § 816.06.
¶73 Although the reference to witnesses being “required”
to appear and testify was removed in 1935, a holistic look at
the 1935 revisions reveals that the legislature’s intent was not
necessarily to change the scope of supplemental proceedings.
The title of the session law is “An Act to revise portions of
Title XXV proceedings in civil actions in courts of record and
Title XXVI actions relating to real estate for clarity and
conciseness of language and simplifying and improving said
proceedings and for harmonizing the substantive provisions with
the procedural rules which are being revised by the Supreme
Court.”15
¶74 In this instance, the statutory change from (1)
“witnesses may be required to appear and testify on the part of
either party” to (2) “testimony on the part of either party may
be offered” seems more likely to have been motivated by a desire
for conciseness or accuracy than a desire to make a dramatic
substantive change.
¶75 The 1935 legislature may have removed the language
explicitly stating that “witnesses may be required to appear and
testify” because the language is unnecessary in light of a
related provision, which the majority ignores. Wisconsin Stat.
§ 885.01 provides a broad grant of subpoena power.
Specifically, it allows “any judge or clerk of a court or court
15 Title, ch. 541, Laws of 1935.
No. 2009AP3029.ssa
10
commissioner . . . to require the attendance of witnesses and
their production of lawful instruments of evidence in any
action, matter, or proceeding . . . .” Wis. Stat. § 885.01(1)
(emphasis added).
¶76 Supplemental proceedings certainly qualify as
“proceedings” under Wis. Stat. § 885.0116 and either a judge or
court commissioner presides over them. Nothing in chapter 816
clearly states that the legislature has prohibited compelling
testimony of third parties at supplemental proceedings. There
is no conflict between the phrase “such judgment debtor may be
examined on oath and testimony on the part of either party may
be offered,” Wis. Stat. § 816.06, and the general subpoena power
of Wis. Stat. § 885.01. The circuit judge or court commissioner
can rely on the provisions of § 885.01 to compel testimony that
either party wants to offer in supplemental proceedings.
¶77 As the author of a chapter on supplemental proceedings
in the Wisconsin Practice Series concluded, “[w]hile the current
statute is perhaps more ambiguous than its predecessor, there
appears to be no reason for excluding the ability of a judgment
creditor to call and examine third parties who may have
information about the judgment debtor’s property.”17
16 See Wis. Stat. § 816.03(2) (“The fact that garnishee
proceedings have been commenced in aid of or that property has
been levied on under a second execution shall not bar
proceedings under this section . . . .”) (Emphasis added.)
17 Robert A. Pasch, Wisconsin Collection Law § 16:4 (2d ed.
2006).
No. 2009AP3029.ssa
11
¶78 The majority disregards the reasonable view of an
experienced Wisconsin commentator, disregards the purpose of
supplemental proceedings, and disregards the interaction between
general subpoena powers and the supplemental proceedings
statutes. It makes too much of a statutory revision that may
well have been intended to be purely non-substantive.
¶79 In sum, the majority’s interpretation of Wis. Stat.
§ 816.06 undermines the purpose of supplemental proceedings. It
will hinder the ability of all judgment creditors (individuals
and corporations alike) to satisfy outstanding judgments against
all judgment debtors (individuals and corporations alike).
¶80 I agree with the court of appeals that the circuit
court properly exercised its discretion when it ordered Orion
Logistics to submit to a supplemental examination.
¶81 For the reasons stated above, I dissent.
¶82 I am authorized to state that Justices ANN WALSH
BRADLEY and N. PATRICK CROOKS join this opinion.
No. 2009AP3029.ssa
1

Wis. Stat. § 816.06 does not grant a
judgment creditor the right to compel a non-judgment debtor
third party to testify at supplemental proceedings.