2009 WI App 31
court of appeals of
published opinion
Case No.: |
2007AP2898 |
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Complete Title of Case: |
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Terry K. Strook,
Plaintiff-Respondent, v. Dean Kedinger,
Defendant-Appellant. |
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Opinion Filed: |
February 18, 2009 |
Submitted on Briefs: |
October 23, 2008 |
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JUDGES: |
Brown, C.J., |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeremy Vanderloop of Storck & Madden of Mayville. |
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Respondent |
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ATTORNEYS: |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peter John Hoeper of Hoeper Law Offices of Waupun. |
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2009 WI App 31
COURT OF APPEALS DECISION DATED AND FILED February 18, 2009 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. |
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STATE OF |
IN COURT OF APPEALS |
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Terry K. Strook,
Plaintiff-Respondent, v. Dean Kedinger,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Brown, C.J.,
¶1 BROWN, C.J. This is a “chicken or the egg” case. More precisely, when a person who must appear in court at a substantive proceeding, seeks an accommodation because of physical disability, and self-identifies in as reasonable a time as possible before the hearing, should circuit courts who believe they need more information before deciding whether and what accommodation to give, make a factual determination before the date of the substantive court hearing, either by informal means or by a formal hearing with notice to the person alleging a disability? Or, may the circuit courts maintain silence about the accommodation request and decide the accommodation request at the substantive hearing? We hold that, as a matter of common sense, fairness and due process, the answer is the former. We reverse because the circuit court in this case used the latter and that latter process prejudicially affected the disabled person’s right to a fair hearing. We also reverse for other, correlative reasons.
¶2 Dean Kedinger alleges that he is deaf. He may even be Deaf (with a capital D). More on that later. This case is mainly about the facts and circumstances surrounding his attempt to have a sign language interpreter at a motion hearing. An interpreter for this hearing was important because the subject matter was substantive: Kedinger’s motion to dismiss Terry Strook’s complaint and Strook’s motion to strike Kedinger’s cross-claims and counterclaims were on the line. Summarily, what happened was that when Kedinger was informed that he would not be afforded an interpreter at the hearing, he refused to appear. We note that the motion hearing was before the Hon. Richard J. Nuss. Judge Nuss struck Kedinger’s cross-claims and counterclaims. The Hon. Karen L. Seifert presided at the resultant trial to the court and a sign language interpreter was afforded Kedinger at that trial. The trial is not our concern. Rather, because Judge Nuss’ pretrial order prohibited Kedinger from prosecuting his cross-claims and counterclaims, Kedinger was not able to present his claims at trial. The motion hearing is where he claims the prejudice lies and, therefore, the trial before Judge Seifert is not material to this appeal. Thus, when we use the term “circuit court,” we will be referring to Judge Nuss.
BACKGROUND
¶3 To completely understand the issue at bar, it is important to set forth the somewhat lengthy history leading up to this appeal. The basic underlying facts leading to the dispute between the parties are simple enough. Strook and Kedinger are neighbors. Kedinger downed trees on their shared property line, some of which were on Strook’s side. Strook claimed that Kedinger was trespassing, but Kedinger claimed that he had consent. Kedinger also claimed that Strook had trespassed on and damaged his property. It is not these facts which need to be parsed out, but rather the procedural history that we need to relate in admittedly great detail.
¶4 Strook filed his complaint for trespassing on March 2,
2006. On April 21, Kedinger, acting pro
se, responded with answers, cross-claims and counterclaims and, by a separate
document, also moved to dismiss the complaint.
On May 5, Strook replied and also moved to strike. On May 12, Kedinger filed a jury demand with
a petition for waiver of filing and service fees. Attached was an affidavit
of indigency stating that Kedinger currently received food stamps, along with
proof that food stamps were issued to him from February 2005 to January
2006. The same day, he also filed a
letter from his doctor that stated:
[Kedinger] is deaf and … requires a sign language interpreter for effective communication. The exception would be written communication which is not always optimally effective in complex matters. It is, of course, slower and more cumbersome .…
In particular, for legal proceedings, I would encourage
you to provide a sign language interpreter for him.
For the next month, nothing happened in the case.
¶5 Then, over a month later, on Friday, June 16, the circuit court mailed the parties a notice that it had scheduled a motion hearing for June 22 on the motions to dismiss and motions to strike. It stated that the court would not adjourn the matter “except upon formal motion for good cause shown or with the specific approval of the court upon stipulation by all parties.” The notice also provided a phone number for those with disabilities. It should be noted, as we will later detail by footnote, that the notice period was abridged, shorter than generally provided for by the statutes. However, the circuit court was shortly thereafter taking medical leave and wanted this motion heard before its extended absence. While this shortened notice is allowed by statute and is within the discretion of the circuit court, we note that it may well have contributed to the problem that is now before this court on appeal.
¶6 On Tuesday, June 20, Kedinger called the court via TTY.[2] He learned that the court would not provide an interpreter at the motion hearing, so he told the court staffer who took the call that he would not attend the hearing. The next day, he filed a formal motion for a sign language interpreter, again asserting that he was deaf. In it, he informed the court that he would not be attending due to not having an interpreter as requested. We quote this motion in pertinent part, in a footnote, because it helps explain the circuit court’s reaction to this motion as part of its ultimate decision in this case. Suffice it to say, certain passages in the motion show a lack of respect for the justice system in general and the circuit court in particular. Venom, arrogance and ad hominem attacks are not to be condoned, whether they are by a member of the practicing bar or a person acting pro se.[3]
¶7 The circuit court held the hearing as scheduled. Kedinger was absent, like he said he would be, but the court still discussed the merits of his motion to dismiss and claims, along with his indigency and interpreter petitions. The court struck his counter and cross claims, dismissed his motion, denied his petition for waiver of jury fees due to insufficient information, and held that the interpreter motion was untimely and would place an undue burden on the county. This is what the court said, in pertinent part:
First … the mere fact that somebody has a disability, regardless of what it might be, does not trump that person’s obligation to make their court appearance and certainly be heard on the subject. And to just summarily, unilaterally not show up and tell the Court this is what it’s going to do and this is the way you’re going to do it, this Court takes particular affront to. It is not for any litigant to dictate to Court how, what, when, where and why, and I think that is what Mr. Kedinger has now chosen to do.
So this Court had every reason to engage in some dialog with him this afternoon as to his alleged deficiency of hearing, because this court takes particular exception to his ongoing position that he … fails to communicate, he cannot communicate with anyone. The court certainly senses, based upon conversations that it had with the court staff up here, and others, that Mr. Kedinger for all practical purposes, picks and chooses his deficit, and how [he] uses it, and how he employs it, and when he wants to use it, and when he wants to employ it. That there are times that he can engage in a meaningful conversation with an individual. But when it gets down to something that requires judicial intervention, then all of the sudden the magnitude of his deficiency rises.
There is no … way that this Court would be in a position to responsibly assess Mr. Kedinger’s deficiency unless he in fact was in court so this Court can certainly observe him, query him, permit him to be heard and do the things that are necessary to determine whether or not there is some legitimacy in this.
The court received Exhibit 1 [the Doctor’s letter] and [it] certainly does not deny [that] this Court [can] engage in some written dialog with Mr. Kedinger as to some of these issue[s], and I intended to probably do that. But Mr. Kedinger is not here. And so the doctor himself indicates that that is—while it’s cumbersome, it certainly would be permissible.
And so the
Court would certainly make a definitive finding that Mr. Kedinger’s rights
would not be just summarily compromised by this motion hearing moving ahead
this afternoon while he may have some deficiency and there may not be an
interpreter present.
¶8 The circuit court then discussed a sheriff’s department incident report where a backhoe operator informed a deputy that he was able to “easily” communicate with Kedinger. The circuit court apparently accepted this as proof that Kedinger asserts a disability only when it suits his purpose. The court then went on to state:
The Court wants to emphasize that Mr. Kedinger has repeatedly exasperated the resources of this court system in an attempt to demonstrate and show that he has some compelling disability that prevents his inability to communicate, short of certified deaf sign language interpreting. This Court takes particular exception to that if it doesn’t even have an opportunity to hear and to see. And if a defendant or a party with such a disability just absents himself from the court, then he should not be given the—the right to have a court just acquiesce to that disability or the significance of that disability. [The Court will] certainly find, based upon the best evidence the Court has, that quite possibly this hearing could have proceeded this afternoon without an interpreter, given the directive from the doctor, given how this Court was willing to engage with … Mr. Kedinger, and Mr. Kedinger has on his own elected to strip the Court of that authority.
Does that
mean that this Court should then just summarily adjourn this hearing and so
advise Mr. Kedinger? No. This matter was properly noticed, timely
noticed, and Mr. Kedinger elected that he just isn’t going to come. He has so much told the Court in his motion
what the facts of life are, and that is the way it is going to be. And this Court, once, again, certainly finds
that there is absolutely no justification for any litigant to arbitrarily make
such directives to the Court ….
¶9 The circuit court then explained on the record that it
understood how Kedinger appeared in the small claims office and was able to
communicate with the staff by using written communication, back and forth. And he also was able to communicate verbally
with a clerk in the family court commissioner’s office. This latter conversation was overheard by a
sheriff’s deputy, who personally told the circuit court that it was a “normal
conversation.” Whether Kedinger “read
lips” the court did not know. But the
circuit court used this out-of-court occurrence as evidence that “[i]t just
shows the complete lack of credibility of Mr. Kedinger’s alleged deficiency
with regard to his hearing defect.”
After again explaining that Kedinger had a duty to come to the motion
hearing and prove his disability to the satisfaction of the court, and again
opining that Kedinger only relies on the disability card when it comes to court
proceedings, the circuit court denied Kedinger’s motion to dismiss and “in the
same vein” granted Strook’s motion to strike.
¶10 But even after having ruled, the court came back to the subject. Again, the court sounded out the above-described themes, but added something new. The court surmised that, outside the courthouse, Kedinger “walks into a store, buys a loaf of bread, puts gas in his car, pays his bills, engages in normal affairs of everyday life. He doesn’t have an interpreter on his arm, and somehow he survives.” But when it comes to a court proceeding, he all of the sudden needs an interpreter. The court then said that
to just continually … abuse the legal system … with
this repeated request for interpreters [is] unjustified [and] an undue economic
burden on the county. It impedes the
legal process. It’s not right and it’s
not fair, and no one should just be able to on their own make those
self-elections without presenting themselves to the jurisdiction of this
Court. Mr. Kedinger has done so, but he
has done so at his peril.
¶11 Finally, in its written “findings and orders” following the hearing, the circuit court wrote, in pertinent part:
The court further finds that the Motion for
Interpreters is without merit, and that there is a serious question as to the
integrity of the request, and that the court would require the defendant to be
present in order that the court could personally evaluate the legitimacy of the
request for interpreters, to make a determination as to whether or not the same
represents an undue economic burden on the county; again, in view of the
defendant’s non-participation, the court has no choice but to make this ruling
on the best evidence.
DISCUSSION
The Law
¶12 We begin, as we must, with the law. The right to an interpreter in
¶13 In State v. Yang, 201
¶14
¶15 Moreover, quite apart from the
¶16 Title II of the 1990 Americans with Disabilities Act commands that
state courts take “appropriate steps” to ensure that communication with a
disabled person is as effective as communication with others. 28 C.F.R. §§ 35.160(a), 35.101. For a person who is deaf or hard of hearing,
this means the court must provide an auxiliary aid such as a qualified
interpreter. 28 C.F.R. §§ 35.160(b)(1),
35.104.
And, the court must give “primary consideration” to the disabled
person’s choice of auxiliary aids. 28
C.F.R. § 35.160(b)(2). The only limit to
these provisions is 28 C.F.R. § 35.164, which provides that a public entity is
relieved of its duty only upon proving that, considering all funding and
operating resources available, the proposed action would result in either (1) a
fundamental alteration in the nature of the service, program or activity or (2)
undue financial or administrative burdens, based on all resources available for
use in the program. The court has the
burden to prove the exception, and must explain, in writing, why it reached its
conclusion.
¶17 Finally, we would be remiss if we did not at least note the
constitutional dimension in all of this.
It is axiomatic that all litigants be able to understand the
proceedings. If a person is unable to
hear and understand, that person is unable to participate, and if unable to
participate, it is a denial of due process under the Fifth and Fourteenth
Amendments. See
¶18 Therefore, considering the
Applying
the Facts to the Law
¶19 As noted in the statement of facts, the circuit court in this case lamented that Kedinger had chosen not to appear at the substantive hearing because, as it said on the record, it had “every reason to engage in some dialog with him this afternoon as to his alleged deficiency of hearing ….” Therein lies the first problem. There is nothing in the record which would show that the circuit court set the matter for a hearing on the need for an interpreter. There was no order, no indication, nothing.
¶20 Even if there had been something in the record to show that the court was going to have such a hearing, nobody told Kedinger that the issue of whether to appoint an interpreter would be a topic of discussion by the court at the substantive hearing. We have searched the record high and low for such a statement. Again, we have been unable to find any reference. All we can find is Kedinger’s formal written request for an interpreter where he alleged that he had called the courthouse and had been told by someone that the court would not provide him with an interpreter. We must conclude that, not only was a hearing not set, but no notice was given to Kedinger that there would be a hearing on the need for an interpreter.
¶21 Once Kedinger properly notified the court that he needed an
interpreter, Yang and the
¶22 As well, taking the circuit court’s word that it intended to
have a “dialog” with Kedinger at the substantive hearing on the need for an
interpreter, Kedinger, as we just noted, never received notice that the court
would be entertaining the accommodation request at that time. Even taking into account Kedinger’s somewhat
insulting, mercurial written statement that he would refuse to appear at the
substantive hearing because no interpreter was going to be present, he at least
deserved notice that the court would take up the issue at the time of the
substantive hearing. Not only did due
process demand it, but so did the interests of justice. The accommodation issue was an issue put in
controversy by the circuit court. As
such, it was a real issue in controversy that had to be heard. But no one told Kedinger. So, the real issue in controversy was never
heard. Therefore, in addition to Yang,
the
¶23 We also hold that the circuit court’s apparent intention to
hear the interpreter issue and the substantive issue simultaneously, was an
improper exercise of discretion. The
court forms emanating from the
¶24 We note that the Yang court spoke to this concern. The court wrote:
We conclude that a court has notice of a language difficulty within the meaning of § 885.37(1)(b), Stats., when it becomes aware that a criminal defendant’s difficulty with English may impair his or her ability to communicate with counsel, to understand testimony in English, or to make himself or herself understood in English. At that point, the court has an obligation to make the factual determination on the need for an interpreter required under § 885.37(1) (b).
We appreciate the trial court’s concern with minimizing unnecessary and premature determinations on the need for an interpreter. However, since the determination does not require an elaborate proceeding, we believe our interpretation of § 885.37(1), Stats., will aid judicial administration by establishing the need for an interpreter, if there is one, earlier rather than later in the criminal process.
Yang, 201
¶25 Relatedly, we must also look at this issue through the lens of the disabled person. If the hearing on whether to provide an accommodation is scheduled at the time of the substantive hearing itself, we place the allegedly disabled person between the proverbial “rock and the hard place.” One can only imagine the fear and confusion that a person with a disability might have if required to appear at an important proceeding to determine liberty or property interests not knowing whether the requested accommodation is going to be granted. Courts are public entities that must be accessible to all. We must assure that, if a person is disabled and needs an accommodation to have access to the courts, then that disabled person should not have to worry about access issues when preparing for the substantive hearing. To do otherwise is no way to conduct judicial business. The hearing on the accommodation should precede the substantive hearing.
¶26 We are not done yet. After reading the record thoroughly, we are satisfied that the circuit court’s comments appear to show how denial of a sign language interpreter was a foregone conclusion even had Kedinger appeared. The court recounted its belief, almost all of it from hearsay, that Kedinger “picks and chooses his deficit,” that his own doctor explained how passing written notes back and forth would suffice and that the court “intended to probably do that,” and that Kedinger was capable of “normal conversation” in any event. From the record, it appears to this court that the circuit court had already made up its mind that there would be no interpreter and that the court would proceed by passing written notes back and forth. We are also mindful that adjourning the matter so as to obtain an interpreter would have thwarted the whole purpose behind the circuit court’s notice for the hearing, which was to hear and decide this matter before the court’s medical leave began.[8]
¶27 In coming to its apparent conclusion that it would have
conducted the hearing without the need for an interpreter, some assumptions
were made by the circuit court that this court finds troubling. For example, the court thought Kedinger could
probably “lip read.” Our initial problem
with this is that the record is devoid of any support for this conclusion,
other than assumption and hearsay. But
more importantly, the court’s statement shows that the circuit court is
misinformed about the value of “lipreading.”
As one commentator wrote, the ability to lip read is more a function of
myth than fact. See Jo Anne Simon, The Use of
Interpreters for the Deaf and the Legal Community’s Obligation to Comply with
the A.D.A., 8 J.L. & Health
155, 175-76 (1994). While many deaf
people can lip read to some extent, only 25% to 40% of the English language is
visible on the lips in the best of conditions.
¶28 Courtroom settings provide an excellent example of the
limitations of speech reading.
¶29 Writing notes back and forth is also an inefficient and
ineffective method of communicating in the courtroom. People, hearing or deaf, tend to condense
what they would say in other modes when they are writing notes, which could be
extremely prejudicial in legal settings.
¶30 We do not know the extent of Kedinger’s ability to
communicate. He may be part of the deaf
population or the Deaf population. The
deaf population in the
¶31 It is up to the circuit court on remand to discover Kedinger’s
capabilities and the best form of communication and go from there. But whatever his capabilities are, the
circuit court must be cognizant not only of our statutes and case law, but also
the
¶32 To assist the court on remand, we offer the commentary of
Professors Michelle LaVigne and McCay Vernon, in their article An Interpreter Isn’t Enough: Deafness, Language and
¶33 We reverse the judgment entered after the trial by Judge Seifert because that trial was prejudicially infected by what occurred pretrial. We also reverse the order entered by Judge Nuss. On remand, the court shall consider Kedinger’s needs for an interpreter, have a new hearing on the motions to dismiss, to strike, indigency and demand for jury trial and proceed from there.
By the Court.—Judgment and order reversed and cause remanded with directions.
[1] The Hon. Richard J. Nuss presided over the motion hearing and issued the order. The Hon. Karen L. Seifert presided over the resultant trial and issued the judgment.
[2] A deaf or speech impaired person can make telephone calls using a Teletypewriter (TTY). With a TTY, the conversation is typed rather than spoken.
[3] Kedinger’s Notice and Motion for Interpreters stated, in pertinent part:
Council and Honorable Judge in these matters: I will NOT be showing up for the 6/22/06
Motion Hearing, due to court not having an interpreter as requested.
1. It has come to the notice of the defendant that it appears the court has not been diligent in its duties as Judge in these maters. The defendant D. Kedinger has filed Motions in the past asking for dismissal on April 21, 2006, with no response. The Court has now had over 90 days to wake up to what this really is and sign it, or answer it in Motion Practice.
2. On Apx. May 11th, 2006 I filled papers for Jury demand and affidavit of Indigence and order under §§ 814/29, of which so far the court has ignored, thus preventing the defendant from filing Third-Party Defendants papers on June 16th, 2006 (within the legal restraints for doing so).
3.
On May 11th, 2006 I also filed proof of
hearing impairment from a doctor to justify my right to have legal interpreters
for all hearings. The grounds for this
Motion are that any statements or arguments made for denial are ambiguous
for the following reasons that they do not comply with
….
4. This must be as effective as your communication with hearing people, in other words as well as those who do not have hearing impairments. I will NOT be voicing, except by my choice when and where as I chose as allowed by law, and my legal right, as I do not know the quality of my voice, and will not allow you to make me look stupid for your enjoyment and others.
5. Any hearing without me and a legal interpreter present will be viewed as ex-parte communications, it has already been proven to me in the past with my ex-wife and clerk of courts at that time and an officer of the law (that she had do her skullduggery for her with the court), & that you and several Judges in Fond du lac County have exposed themselves to violating the following SCR 60 ethics rules, as follows; 60.02, 60.03, 60.04 and has proven 757.19(2g) in the kind of response given, among others yet known.
6. If you wish for this to take years in place of months, (which it may anyway), and that is your desire, then you are once again taking advantage of the system at taxpayer’s undue expense. This to me is use and abuse of the system and adds up to collusion in with the defendants, this done without interpreters would create undue depression and would limit my knowledge of what is all happening in the room and why, and for the purpose “To limit my testimony and evidence against the defendants, done by design in skullduggery”, (and yet you do not learn from your past). I now again suffer a heart conduction, as a effect of consequence, as this County’s actions result may yet again in another heart attack, This all again because you are too cheap to pay for an interpreter(s) and that is why we are here in the first place, at this point in time.
“All of my
case(s) is and are a conflict of interest for every Judge in this County
and all surrounding areas as a result of dishonest Knavery and Skullduggery
used.”
(Quoted verbatim from motion.)
[4] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[5]
If the court determines that the person has limited English proficiency and that an interpreter is necessary, the court shall advise the person that he or she has the right to a qualified interpreter at the public’s expense if the person is one of the following:
1. A party in interest.
2. A witness, while testifying in a court proceeding.
3. An alleged victim, as defined in s. 950.02(4).
4. A parent or legal guardian of a minor party in interest or the legal guardian of a party in interest.
5. Another person affected by the proceedings, if the court determines that the appointment is necessary and appropriate.
Section 885.38(1)(b) (2007-08) provides that limited English proficiency means:
1. The inability, because of the use of a language other than English, to adequately understand or communicate effectively in English in a court proceeding.
2. The inability, due to a speech impairment, hearing loss, deafness, deaf-blindness, or other disability, to adequately hear, understand, or communicate effectively in English in a court proceeding.
[6] In
2007
[7] The court of appeals is vested with the discretionary power to order a new trial by Wis. Stat. § 752.35, which provides:
In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.
[8] Wisconsin Stat. § 801.15(4) requires courts to provide the
parties at least five days notice before holding a hearing on a written
motion. When the notice period is less
than eleven days, courts must exclude weekend days. Sec. 801.15(1)(b). Courts must also exclude the day of the
notice.
Here, the circuit court mailed notice on Friday, June
16, 2006, that it would hold a motion hearing on June 22, 2006. Notice by mail requires eight days, excluding
weekends. Wis. Stat. § 801.15.
June 17 and 18 fell on a weekend.
Therefore, to hold a motion hearing on June 22, 2006, in compliance with
§ 801.15, the circuit court would have had to mail the notice on June 12,
2006. Since the court mailed its notice
June 16, it sua sponte shortened the notice period by four days. However, a circuit court has the inherent
power to control its calendar and scheduling and may shorten the five-day
notice period. Schopper v. Gehring, 210
[9] We are also troubled by Strook’s argument in his brief that if Kedinger could communicate with the clerk of court’s office by telephone, he can communicate in the courtroom. As we noted, the phone call was made by use of a teletype device called a TTY. That would hardly be evidence that he can communicate in the courtroom. Deaf people have many ways of communicating by telephone due to modern technology. But that does not even begin to answer the communication needs in the courtroom.