COURT OF APPEALS DECISION DATED AND FILED April 20, 2010 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
from a judgment of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 CURLEY, P.J. Robert C. Braun, pro se, appeals from a judgment
dismissing Braun’s claims against the City of
I. Background.
¶2 Braun engaged in a public protest at the Mayfair Mall in
¶3 When they arrived, Officers Mastrocola and Olson approached Braun near the entrance to the Mayfair Mall and identified themselves as law enforcement officers. Officer Olson testified that she and Officer Mastrocola advised Braun “a number of times” that they “wanted to talk to him,” but that “he just didn’t want to talk to [them].” She testified that: “[Braun] ignored us. He walked away from us. He yelled some things like, you know, go away. I don’t want to talk to you. Things like that.” Officer Olson further testified that at one point during her interaction with Braun, she instructed Braun to put his hands behind his back, but that Braun responded that he wasn’t “going to put them nowhere.”
¶4 Officer Mastrocola testified that Braun “was very irritated,” had “exaggerated movements,” and that Braun “began to ignore [him] immediately.” He testified that he asked Braun for an explanation for his presence, but was ignored by Braun. He testified that Braun kept putting his hands in his pockets, and that because of safety concerns, he advised Braun to keep his hands out of his pockets. Braun, however, did not do so. Officer Mastrocola testified that Braun “close[d] the reactionary gap that [Officer Mastrocola] had” between himself and Braun. In response, Officer Mastrocola stuck his hand up and “asked Braun to step back,” which Braun refused to do. Officer Mastrocola testified that Braun told him to “[g]et lost” and again put his hands in his pockets. Officer Mastrocola further testified that Braun “told me I didn’t have jurisdiction. He asked me to get a different law enforcement agency there. He—he [was] not giving me any credibility whatsoever as a police officer.”
¶5 Officer Mastrocola testified that after he heard Officer Olson tell Braun to put his hands behind his back, he heard Braun say he wasn’t going to and observed Braun put his hands back into his pockets. Officer Mastrocola testified that he became concerned for his and Officer Olson’s safety, as well as the safety of bystanders. He testified that he was “unable to physically control [] Braun’s movements” while Braun was on his feet, and that in order to control Braun, he wanted to get him to the ground. To do so, he “decentralized [Braun] to the ground” by “sweep[ing] his one foot and direct[ing] him to the ground while controlling his descent.” Braun was then placed under arrest for trespassing.
¶6 Wauwatosa cited Braun with resisting arrest, in violation of Wauwatosa Ordinance No. 7.02.01(18),
and with criminal trespass to land, in violation of Wauwatosa Ordinance No. 7.02.010(5), which adopts
¶7
¶8 A jury trial was held on Braun’s two remaining claims—false
arrest and use of excessive force. The
court precluded Braun from presenting to the jury his opinion that the December
16, 2005 letter from Mayfair Properties banning him from Mayfair Mall was
illegal or a sham on the basis that it was not relevant. Braun claims that the court also prevented
him from presenting any evidence regarding the motivating forces behind
Officers Mastrocola’s and Olson’s behavior.
Following Braun’s admission that the officers had probable cause to
arrest him, the circuit court dismissed, on
II. Analysis.
A. Declaratory
judgment action.
¶9 Braun challenges the circuit court’s dismissal of his declaratory judgment action. Before a plaintiff may maintain a declaratory judgment action under Wis. Stat. § 806.04, there must first exist a justiciable controversy. Lake Country Racquet & Athletic Club, Inc. v. Village of Hartland, 2002 WI App 301, ¶15, 259 Wis. 2d 107, 655 N.W.2d 189. “This is so because the purpose of [§ 806.04] is to allow courts to anticipate and resolve identifiable, certain disputes between adverse parties.” Olson v. Town of Cottage Grove, 2008 WI 51, ¶28, 309 Wis. 2d 365, 749 N.W.2d 211. A controversy is justiciable when the following four factors are present:
(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.
(2) The controversy must be between persons whose interests are adverse.
(3) The party seeking declaratory relief must have a legal interest in the controversy—that is to say, a legally protectable interest.
(4) The issue involved in the controversy must be ripe for judicial determination.
¶10 Braun sought a declaratory judgment clarifying Wis. Stat. § 943.13, which was adopted by Wauwatosa Ordinance No. 7.02.010(5). See No. 07.02.010(5). Braun agreed with the court that he sought clarification of both his past and future conduct relating to No. 7.02.010(5).
¶11 The circuit court determined that it was not the appropriate
forum to provide clarification for Braun as to his past conduct relating to Wauwatosa Ordinance No. 7.02.010(5). The court determined that the clarification
Braun sought for his past conduct required factual determinations that were
more appropriately addressed in the proceeding adjudicating the charges bought
against Braun by
¶12 Although we understand and are perhaps somewhat sympathetic to
the procedural difficulty Braun has faced in pursing his action for declaratory
judgment, Braun did not dispute before the court below, and does not dispute
now, the court’s determination that it was not the appropriate forum to address
Braun’s past conduct with respect to Wauwatosa
Ordinance No. 7.02.010(5). Furthermore, even if the circuit court
in the proceeding below was the appropriate forum, there is no longer a
justiciable issue to be declared with respect to Braun’s prior conduct. The law is clear that a declaratory judgment
action may not be maintained if the issue involved is not “‘ripe for judicial
determination.’” See Olson,
309
¶13 We also agree with the circuit court that it did not have the
authority to provide the clarification Braun sought with respect to his
potential future conduct. “‘A
justiciable controversy requires the existence of present and fixed
rights. A declaratory judgment will not
determine hypothetical or future rights.’”
Zehner v. Village of Marshall, 2006 WI App 6, ¶13, 288
B. Preclusion
of evidence.
¶14 Braun contends the circuit court erred in precluding from trial his opinions regarding the December 16, 2005 Mayfair Mall ban and related matters. At trial, Braun attempted to present to the jury his opinion that the December 16 ban order was invalid. He also attempted to present his opinion regarding the officers’ motivations. The court, however, precluded him from presenting such evidence on the basis that it lacked relevancy. We agree.
¶15 The admissibility of evidence lies within the circuit court’s
sound discretion.
¶16 Following the dismissal of Braun’s claim for false arrest, the
sole claim tried to the jury was Braun’s claim that Officers Mastrocola and
Olson used excessive force on December 30, 2005, when they arrested him. Neither Braun’s opinion that Mayfair Mall’s
December 16, 2005 ban was invalid, nor his opinion regarding underlying motivations
of the officers, was relevant to the question of whether the officers employed
reasonable or excessive force to overcome the resistance of Braun at the time
of his arrest. See, e.g.,
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Braun
states in his brief that he was convicted of both citations and that he
appealed those convictions. The
citations were ultimately dismissed on December 4, 2007.
[3] Braun asks this court to provide the declaratory judgment he sought in the circuit court below. As we explained above in ¶¶7-12, declaratory judgment is not appropriate in this case because the controversy is not justiciable.