Unfortunately, in the wake of this decision, motorists who are involved in automobile accidents and receive municipal citations will be wise to plead no contest rather than fight the citation, regardless of how much they feel they may be in the right.
Even if the first four Crozier factors weigh in favor of invoking the doctrine of issue preclusion in this particular case, that invocation is so arbitrary that it would have been far better for the court to hold that, as a matter of public policy, municipal traffic violations are insufficient to support application of the doctrine.
The fundamental reality is that, unless ones drivers license is at stake, it is far more trouble than it is worth to litigate a municipal traffic ticket through the municipal court, pay the jury fee if unsuccessful, and then try the case again in circuit court.
The fifth Crozier factor is 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.
A municipal traffic prosecution is the epitome of an action in which incentive to obtain a full adjudication is absent. A law professor asking his civil procedure class to name a type of action that carries so little incentive to fight that they it be barred by the fifth Crozier factor would expect every student to answer, a municipal traffic ticket.
Here, the decision was made to withdraw the jury demand after counsel was obtained. Presumably, counsel advised Masko how many hundreds of dollars she would have to pay in attorneys fees to fight the penny-ante ticket, and advised her that any testimony she gave could be used against her at the civil trial.
Presumably, counsel advised her that pursuing the appeal was folly. Prior to this decision, it would have been reasonable advice to tell a client she had a better chance of being struck by lightning on the courthouse steps than that issue preclusion would be used with a municipal traffic citation. There is not a single Wisconsin case, published or unpublished, in which such a conviction formed the basis for issue preclusion.
The decision in this case stands in stark contrast with Crozier, in which the defendant argued a lack of incentive in the criminal prosecution against him, to which the Supreme Court responded, we find it difficult to understand how Crozier could have been any more motivated to fully and vigorously litigate the initial determination when confronting the possibility of incarceration for second degree sexual assault. Michelle T. v. Crozier, 173 Wis.2d 681, 696, 495 N.W.2d 327, 334 (1993).
Needless to say, it is patently impossible to paraphrase this sentence to fit Maskos situation confronting the possibility of a ticket costing a couple hundred dollars at most without sounding ludicrous.
Admittedly, in Crozier, the court stated that, in considering the incentive, the analysis should be made on a case-by-case basis with the court looking at the actions taken to defend the case and not at the potential penalties. Crozier, 495 N.W.2d at 331. And, as the court noted, Masko vigorously contested the action in the municipal court.
However, two nonactions taken in defending the case amply demonstrate the absence of incentive not hiring counsel for the trial, and not pursuing the appeal in the circuit court.
The court concluded it would not serve the public interest to allow relitigation merely because the party appeared pro se in the first trial. While that may be true, it is irrelevant; the action of not retaining counsel demonstrates the lack of incentive to fully contest the first action.
In addition, she did not continue the appeal to the circuit court. This also de
monstrates the absence of any real incentive to fight the prosecution.
Instead of interpreting that as a telling indicia of Maskos lack of incentive, however, the court instead turned that action on its head by using it as an indicia that Masko had ample opportunity to fight the charge.
The opportunity to fight the conviction does weigh in favor of invoking issue preclusion. However, opportunity must be distinguished from incentive, and the withdrawal of the appeal shows how little incentive there was to fight the conviction.
In the future, plaintiffs attorneys would be wise to instruct their clients in Maskos position not to fight their traffic tickets.
– David Ziemer
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David Ziemer can be reached by email.