Issue preclusion applies to municipal ticket

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Where a driver involved in an automobile accident was found guilty in municipal court of making an improper lane change, the doctrine of issue preclusion bars an action by the motorist in tort, the Wisconsin Court of Appeals held on May 8.

Ann M. Masko was involved in an accident involving her minivan and a Madison city bus. She received a citation for making an improper lane change. She contested the citation in municipal court, appearing pro se. At the hearing, Masko testified that the bus had moved into her lane and struck her vehicle. The bus driver testified that Masko’s vehicle had attempted to move into the bus’s lane, causing the accident.

The municipal court issued a written decision finding that the bus driver’s version of events was more credible than Masko’s, and therefore the City had proved a violation by clear, satisfactory and convincing evidence.

Masko requested a trial de novo in circuit court, but subsequently obtained counsel and withdrew the request. Instead, she commenced a civil action against the City in circuit court, alleging negligence.

The city moved for summary judgment, arguing that the issue of liability had been litigated in the municipal court proceeding, and therefore, issue preclusion barred Masko’s civil suit for damages. Dane County Circuit Court Judge Paul B. Higginbotham granted the motion and dismissed the complaint. Masko appealed, but the court of appeals affirmed in a decision by Judge Charles P. Dykman.

Five Factors

The doctrine of issue preclusion forecloses relitigation of an issue that was litigated in a previous proceeding involving the same party or its privies. The court concluded that both steps of the analysis laid out in Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 594 N.W.2d 370 (1999) were present: whether a litigant is in privity or has sufficient identity of interest with the party to the prior proceeding; and whether application of issue preclusion is consistent with fundamental fairness.

The first step, the court concluded, was obviously met because Masko was the defendant in the municipal court proceeding and is the plaintiff in the civil action.

The court also found the second step met, applying the five factors identified in Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993): (1) whether the party against whom preclusion is sought, as matter of law, could have obtained review of the judgment; (2) whether the question is one of law that involves two distinct claims or intervening contextual shifts in the law; (3) whether significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) whether the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and (5) whether matters of public policy and individual circumstances are involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action.

Several of the factors were not in dispute. The first factor favored the City and issue preclusion, because Masko had the opportunity to seek review of the municipal court’s decision. The second factor, whether the issue is a question of law involving distinct claims or intervening shifts in the law, also favors issue preclusion, because the issue in the two cases is the same — whether Masko or the bus driver caused the accident.

The fourth factor also favors the city, because the burden of proof in the municipal trial was “clear, satisfactory and convincing” evidence, a higher standard than the preponderance of the evidence that Masko would have to show to recover damages from the City.

The court then turned to the factors in dispute — the third and fifth. Concerning the third &#151
; the quality and extensiveness of the proceedings — Masko argued that her lack of counsel is a critical factor weighing against preclusion. Masko argued, “I was extremely uncomfortable in the simultaneous role of counsel and defendant.

Despite my best efforts, I could not be expected to cross-examine witnesses as extensively as an experienced attorney advocating my best interests.” Masko also stressed that municipal cases are tried before a court, rather than a jury.

The court disagreed, finding that, although Masko was “obviously unfamiliar with the technicalities of court procedure,” she nevertheless, “was able to fully litigate the issue of liability.” The court noted that Masko presented exhibits and testified as to her version of events, cross-examined the bus driver, a witness, and the police officer who responded to the accident.

The court also found that the lack of a jury in municipal court proceedings did not weigh against issue preclusion, because Masko had the right to request a de novo jury trial in circuit court.

Turning to the fifth factor, the court concluded that Masko failed to present any compelling reason why public policy or individual circumstances would render the application of issue preclusion to be fundamentally unfair.

Masko argued that she lacked incentive to obtain a full and fair adjudication in the municipal proceeding because she was unaware of the effect the municipal court decision could have in a subsequent effort to recover damages from the City.

However, the court found that the municipal court judge informed her before that trial as follows: “You also understand that if I find you guilty, that guilty finding could be used against you if there’s a claim for any damages or injury resulting from this incident. In addition, any testimony from today, whether you win or lose, could be used against you in that case as well.”

From this, the court concluded, “while Masko may not have been aware of issue preclusion as a legal doctrine, she knew from the municipal court’s admonishment that an adverse result could have repercussions in subsequent proceedings.”

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The court also concluded that the municipal court trial gave Masko “a fair opportunity procedurally, substantively and evidentially to litigate the issue.

The court reasoned, “[Masko] actively participated in the prior proceeding and despite her attempts to impeach the testimony of the other witnesses, the judge found the bus driver’s account to be more credible than Masko’s. Further, she elected not to pursue a new trial in circuit court where she would have had the right to a jury.

Nor does it serve the public interest to allow relitigation of an issue on the grounds that the first attempt was unsuccessful because the party appeared pro se but now, having retained counsel, the party should be allowed to try for a better outcome. The interests of judicial efficiency and protecting parties against repetitious litigation outweigh Masko’s interest in relitigating the liability issue that was already determined in municipal court. We conclude that the trial court properly determined that issue preclusion applied and that barring Masko’s claim does not contravene principles of fundamental fairness.”

Accordingly, the court affirmed.

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David Ziemer can be reached by email.