COURT OF APPEALS DECISION DATED AND FILED June 19, 2008 David R. Schanker Clerk of Court of Appeals |
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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. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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Plaintiff-Respondent, v. LaVonne R. O'Malley,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 HIGGINBOTHAM, P.J.[1] Lavonne R. O’Malley appeals pro se a judgment against her for failure to stop at a stop sign as a bicyclist, contrary to Wis. Stat. § 346.46(1) (2005-06).[2] We affirm.
BACKGROUND
¶2 O’Malley received a citation for failure to stop at a stop
sign while riding her bicycle at the intersection of
¶3 O’Malley argued to the circuit court that the citation was
invalid because the stop sign was not a legal traffic control device. O’Malley provided documentation showing that
the stop sign was installed in response to residents’ complaints of heavy
traffic and excessive speed on
¶4 The court denied O’Malley’s motion to dismiss. O’Malley admitted to riding her bicycle through the stop sign and entered a plea of no contest to the citation. The court entered judgment against her and imposed a minimum forfeiture of $135.60. O’Malley appeals.
DISCUSSION
¶5 This case requires us to interpret statutes and regulations,
a question of law that we review de novo.
E.S. v. Seitz, 141
¶6
¶7 Wisconsin Stat. § 349.065
requires that “the design, installation and operation or use of new traffic
control devices placed and maintained by local authorities after the adoption
of the uniform traffic control devices manual under s. 84.02(4)(e) shall
conform to the manual.” Thus, Wis. Stat. §§ 84.02(4)(e) and
349.065 adopt the MUTCD as state law.[4] See
Harmann
v. Schulke, 146
¶8 O’Malley argues that the stop sign was not legally installed
because it did not conform to the standards found in the MUTCD, and that
failure to stop at the sign did not violate
Wis. Stat. § 346.46(1) [5]
because an illegal sign is not an “official sign” within the meaning of the
statute.[6] Specifically, she notes that §§ 1A.09
and 2B.07 of the MUTCD[7]
state that a decision to place a traffic control device at a particular
location “should be made on the basis of either an engineering study or
application of engineering judgment.” O’Malley
argues that because
¶9 The provision of the MUTCD upon which O’Malley relies is not
mandatory. The MUTCD contains statements
of law entitled “Standards,” which are mandatory, and comments upon those
Standards entitled “Guidance,” which are “statement[s] of recommended, but not
mandatory, practice in typical situations.”
¶10 Moreover, this language of the MUTCD cannot supplant the
legislative discretion o f the Westport Town Board. See
Harmann,
146
¶11 Finally,
O’Malley contends that she was denied due process because the circuit court did
not adequately address her arguments at the hearing. We disagree.
The record shows that the circuit court afforded O’Malley due process by
giving her a meaningful opportunity to present her case before the circuit
court at the hearing. See Mathews v. Eldridge, 424
By the Court. – Judgment affirmed.
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)(d) (2005-06).
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3] Although
the supplemental report did list installation of a stop sign as an option, it
expressed reservations about the safety of placing stop signs on
[4] The
Wisconsin Department of Transportation has adopted the latest edition of the
Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD), and
includes a supplement to the federal rules to modify the standards for use in
[5] Wisconsin Stat. § 346.46(1) provides, in relevant part:
Except when directed to proceed by a traffic officer or traffic control signal, every operator of a vehicle approaching an official stop sign at an intersection shall cause such vehicle to stop before entering the intersection and shall yield the right-of-way to other vehicles which have entered or are approaching the intersection upon a highway which is not controlled by an official stop sign or traffic signal. (Emphasis added.)
[6] The
County contends that O’Malley waived her right to assert this claim on appeal
when she pleaded no contest. See State
v. Multaler, 2002 WI 35, ¶54, 252
[7] MUTCD § 1A.09 provides, in relevant part:
The decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgment….
Engineering judgment should be exercised in the selection and application of traffic control devices, as well as in the location and design of the roads and streets that the devices complement. (Emphasis added.)
MUTCD § 2B.07 provides, in relevant part:
The decision to install multiway stop controls should be based on an engineering study. (Emphasis added.)
[8] Moreover, the language of the provision itself, which states the basis upon which the decision to place a traffic control device should be made, is not mandatory. See Qwest Corp. v. Federal Commc’ns Comm’n, 258 F.3d 1191, 1200 (10th Cir. 2001) (“The term ‘should’ indicates a recommended course of action, but does not itself imply the obligations associated with ‘shall’”).