New Trial Case Analysis

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The decision appears to foreclose review in circuit court of municipal court dismissals, but in fact does not. As the majority observed in a footnote, “the City had an opportunity to seek a meaningful review of the municipal court’s judgment through an appeal on the record under Wis. Stats. sec. 800.14(5). Because the City forfeited this opportunity, it cannot complain that it has been denied a meaningful review of the municipal court’s judgment.”

As odd as the majority’s conclusion is — that there was no trial in this case — this method of review is arguably the more appropriate method, anyway, inasmuch as the municipal court’s decision involved only legal conclusions, rather than factfinding and weighing of credibility.

Furthermore, had the city gone this route, it may have succeeded. Unlike a charge of operating with a prohibited BAC, a charge of operating while under the influence can be proven without a BAC result.

Regardless of whether the majority or dissent is correct about whether the city should be able to have a new trial, however, the court’s conclusion that the city forfeited its right to a review on the record by requesting a new trial is insupportable.

The court cited no authority for the holding, but there is prior precedent for it. In Meyer, the court stated, “The Village had the opportunity to seek a meaningful review of the municipal court judgment through an appeal on the record under sec. 800.14(5). Because the Village forfeited this opportunity, it cannot complain that it has been denied a meaningful review of the municipal court’s judgment. See Hennen, 206 Wis.2d at 355, 557 N.W.2d at 821.”

	Links Wisconsin Court of Appeals Related Article City can’t get new trial after directed verdict

However, City of Middleton v. Hennen, 206 Wis.2d 347, 557 N.W.2d 818 (Ct.App.1996) does not hold that mistakenly requesting a new trial when no right to one exists forfeits the right to an appeal on the record, as the court in Meyer, and now again in the case at bar, assumes.

Hennen holds as follows: “a party appealing from an adverse municipal court judgment is given an opportunity to be heard in the circuit court in a most meaningful manner: by trying the case anew to either a judge or jury. If an appellant chooses the de novo option, any errors committed by the municipal court are completely vitiated.” Hennen, 206 Wis.2d at 355.

Thus, all Hennen holds is that a party who is given a de novo trial cannot complain about errors in the first trial. However, the case presumes that the appellant is actually given a de novo trial.

The case in no way stands for the holding in Meyer, repeated in the case at bar, that a party who asks for a new trial forfeits the right to review on the record, even if the request for a new trial is denied.

Municipalities aggrieved by the holding in the case at bar and wishing to take the issue in this case to the Supreme Court should therefore preserve this issue for appeal as well, in case they fail.

– David Ziemer

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David Ziemer can be reached by email.