COURT OF APPEALS DECISION DATED AND FILED April 22, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
2007TR19556 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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City of Plaintiff-Appellant, v. Kay Kleppek, Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
¶1 KESSLER, J.[1] The
City of South Milwaukee appeals from an order dismissing Kay Kleppek’s Wis. Stat. § 800.14(4) appeal to
the circuit court, pursuant to a municipal court conviction for operating a
vehicle while intoxicated and having a blood alcohol level in excess of the
legal maximum. Kleppek was found to have
violated
¶2 When the appellant elects to appeal from a municipal court
decision by requesting a new trial in the circuit court, there is no statutory
right to a transcript of the municipal court proceeding. Consequently, the circuit court’s
determination that it was not fair to proceed with the new trial must have been
based on the conclusion that the lack of a transcript deprived Kleppek of a
constitutionally protected right. We may
“independently review the facts … to determine whether any constitutional
principles have been offended.” State
v. Clappes, 136
¶3 Instead of an appeal to the circuit court pursuant to Wis. Stat. § 800.14(5), which is based on the record of the municipal court trial, Kleppek selected to appeal pursuant to § 800.14(4), which provides for a completely new trial:
Appeal from municipal court decision.
.…
(4) Upon the request of either party within 20 days after notice of appeal under sub. (1), or on its own motion, the circuit court shall order that a new trial be held in circuit court. The new trial shall be conducted by the court without a jury unless either party requests a jury trial within 10 days after the order for a new trial.
Wis. Stat. § 800.14(4).
¶4 Although a municipal court is not a court of record,
[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. A party may also raise issues in the circuit court that he or she failed to raise in the prior proceeding, an opportunity not usually afforded appellants in this court.
Because Kleppek had no statutory right to a transcript of the municipal court proceedings for a new trial, we examine whether the trial court’s conclusion that the lack of the transcript so diminished her ability to impeach witnesses at a circuit court trial that the lack of the transcript deprived her of a constitutionally protected right. We conclude it did not.
¶5 Case law consistently has held that the ultimate solution for
appeal from a court of record, where all or part of the record is missing and
cannot be reconstructed, is not dismissing the case, but ordering a new trial. State v. Raflik, 2001 WI 129, ¶¶1,
57, 248
the absolute and constitutional necessity for providing a criminal defendant a transcript that will make possible a meaningful appeal…. An appellate court cannot function if it has no way to determine whether error has been committed. In most instances, a transcript is required for appellant’s counsel to locate error and for an appellate court to verify or disprove it.… Moreover, whether error is prejudicial or harmless is usually determinable only in the context of the entire record.
Perry,
136
¶6 Where an appeal on the record is not possible because of an
unavailable transcript (which cannot reasonably be reconstructed), the cases
cited by Kleppek demonstrate that the long-established remedy is a new
trial. See, e.g., Pacific Nat’l Fire Ins. Co. v. Irmiger, 254
Wis. 207, 213, 36 N.W.2d 89 (1949) (when court reporter died before preparing
transcript, making appellate review of the record impossible, remedy is a new
trial). Those cases all dealt with an
appeal which was a review limited to the record below, not a completely new
trial, as she has elected under Wis.
Stat. § 800.14(4). See, e.g., Raflik, 248
¶7 However, Kleppek is not appealing from a court of record to
an appellate court. Although Wis. Stat. § 800.13(1) requires municipal
courts to make audio recordings of their proceedings, § 800.13(2)
specifically states that “a municipal court is not a court of record.” In the legislative scheme created by Wis. Stat. § 800.14(4) & (5) for
review of municipal court decisions, review is to the circuit court, which in
¶8 Kleppek does not argue that her inability to obtain testimony
for impeachment purposes from the witnesses against her before the municipal court trial deprived her of fundamental
fairness in the municipal court proceeding.
The question then is how the circuit court trial offends the
constitution because, as at the municipal court, she does not have prior
testimony for impeachment purposes. We
perceive no constitutional difference between the two proceedings, and none has
been suggested.[5] Essentially, what Kleppek argues is that she
has lost the equivalent of a discovery deposition in a civil proceeding because
of the malfunction of the recording equipment.
However, she cites no authority from
¶9 Because a person electing review of a municipal ordinance violation by a new trial at the circuit court has no statutory right to a transcript of the municipal court proceeding, and because we find no constitutional requirement that a transcript of municipal court proceeding be provided for use at the new trial, we reverse and remand for trial in the circuit court pursuant to Wis. Stat. § 800.14(4).
By the Court.—Order reversed and cause remanded.
This opinion will not be published. See Wis. Stat Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Wisconsin Stat. § 800.13, entitled “Recording in municipal court,” states: “(1) Every proceeding in which testimony is taken under oath in a municipal court shall be recorded by electronic means for purposes of appeal. (2) Notwithstanding sub. (1), a municipal court is not a court of record.”
[3] Wisconsin Stat. § 800.14(5) states, in pertinent part:
If there is no request or motion under sub. (4), an appeal shall be based upon a review of a transcript of the proceedings. The municipal judge shall direct that the transcript be prepared from the electronic recording …. The electronic recording and the transcript shall be transferred to the circuit court for review.
[4] Wisconsin Stat. § 805.17(2) describes a trial to a circuit court without a jury, and the nature of review thereof. The statute requires, among other things, that “[t]he court shall either file its findings and conclusions prior to or concurrent with rendering judgment, state them orally on the record following the close of evidence or set them forth in an opinion or memorandum of decision filed by the court.”
[5] Kleppek does not challenge the process of audio recording, with subsequent preparation of a transcript. Indeed, the transcript of the hearing before the circuit court which resulted in this appeal was electronically recorded and the transcript prepared thereafter.