COURT OF APPEALS DECISION DATED AND RELEASED August
10, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos. 94-2157
94-2226
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
94-2157
WAUSHARA
COUNTY,
Plaintiff,
v.
RICHARD
MACK,
Defendant-Third Party
Plaintiff-Appellant,
JOHN
DAVIS, MICHAEL MOE,
EAGAN
AGENCY LTD., LEWIS MURACH,
Third Party Defendants-Respondents.
------------------------------------------------------------------------------------------------
94-2226
COUNTY
OF WAUSHARA,
Plaintiff,
v.
RICHARD MACK,
Defendant-Third
Party
Plaintiff-Appellant,
JOHN
DAVIS,
MICHAEL
MOE,
Third Party Defendants-Respondents.
APPEAL
from a judgment and orders of the circuit court for Waushara County: LEWIS MURACH, Judge. Affirmed.
DYKMAN,
J. This is a single-judge appeal decided pursuant to
§ 752.31(2)(b), Stats. Richard Mack appeals from a judgment and
orders issued in a civil forfeiture action.
He raises three issues on appeal:
(1) "restraints" issued against Mack are
unconstitutional; (2) the trial court lacked jurisdiction; and
(3) the trial court had jurisdiction to decide Mack's counterclaim and
cross-claims against Waushara County, John Davis, Michael Moe, Eagan Agency
Ltd. and Judge Lewis Murach.
We
conclude that the "restraints" issued against Mack were proper and
that the trial court had jurisdiction.
We also conclude that the trial court did not have jurisdiction to
decide Mack's counterclaim and cross-claims.
We therefore affirm. We also
conclude that Mack should be sanctioned for his scandalous and disrespectful
briefs.
BACKGROUND
On
July 16, 1992, Waushara County commenced a forfeiture action against Richard
Mack, alleging that Mack had violated Waushara County's trespassing ordinance
by installing a pier in violation of the riparian rights of his neighbor, John
Davis. Mack counterclaimed, seeking to
recover damages from Waushara County.
Mack later filed a cross-claim against Davis and Michael Moe. Mack also filed a second cross-claim and a lis
pendens against Eagan Agency Ltd., Davis and Judge Murach. The trial court dismissed the counterclaim
and cross-claims without prejudice.
This appeal followed.
JURISDICTION
Mack
claims that the trial court lacked jurisdiction over him because process was
never served on him. Were Mack correct,
we would be required to dismiss his appeal because no action would exist in
which he could file his counterclaim and cross-claims. But we need not consider this issue. Mack has appeared in this action. He moved for appointment of legal counsel,
he demanded a jury trial, he requested the production of documents, and he
moved for a protective order and an evidentiary hearing. He also filed a motion to dismiss, and a
counterclaim and cross-claims. Where an
appearance is made and relief is sought on other matters, an objection based
upon lack of personal jurisdiction is waived.
Artis-Wergin v. Artis-Wergin, 151 Wis.2d 445, 452, 444
N.W.2d 750, 753 (Ct. App. 1989). We
conclude that because Mack has appeared in this action, he has waived his
objection based upon lack of personal jurisdiction.
COUNTERCLAIM/CROSS-CLAIMS
Mack
next contends that the trial court had jurisdiction to decide the counterclaim
and cross-claims against Waushara County, Davis, Eagan Agency Ltd. and Judge
Murach.
Section
801.01(2), Stats., provides in
part, "Chapters 801 to 847 govern procedure and practice in circuit courts
of this state in all civil actions and special proceedings whether cognizable
as cases at law, in equity or of statutory origin except where different
procedure is prescribed by statute or rule." (Emphasis added.) Section
66.119(3)(b), Stats., provides
that different procedure:
If a person
appears in court in response to a citation, the citation may be used as the
initial pleading, unless the court directs that a formal complaint be made, and
the appearance confers personal jurisdiction over the person. The person may plead guilty, no contest
or not guilty.... A plea of not
guilty shall put all matters in the case at issue, and the matter shall be set
for trial.
(Emphasis added.)
Counterclaims
and cross-claims are not permitted in forfeiture actions because
§ 66.119(3)(b), Stats.,
authorizes only a limited number of possible responses. A counterclaim or a cross-claim is not one
of those responses. If Mack desired to
initiate claims, he should have pursued them as separate actions.
"RESTRAINTS"
Mack
also argues that his First Amendment rights were violated because the trial
court wrongfully restrained him from filing a lis pendens against the
property in dispute. But the court
correctly dismissed the counterclaim and cross-claims and we have previously
explained why it was proper to do so.
Without a claim against Davis, Mack cannot file a lis pendens
affecting Davis's real estate. Section
840.10(1), Stats. The court did not err by enjoining Mack from
filing further lis pendens affecting this action.
PRESIDING JUDGE
This
case was originally assigned to Judge Jon P. Wilcox. We take judicial notice that Judge Wilcox was subsequently
appointed to the Wisconsin Supreme Court and took his oath of office on
September 3, 1992. Judge Murach replaced
Judge Wilcox as circuit judge for Waushara County. Mack claims that Judge Murach did not have jurisdiction to
preside over the case because Judge Murach took the case without being assigned
to the civil forfeiture action.[1] However, Mack received actual notice that
Judge Murach had been assigned to the case when he received the order for a
pretrial conference signed by Judge Murach on May 25, 1993. Such notice triggered the ten-day period for
substitutions under § 801.58(1), Stats.[2] Mack's request for substitution was not
timely because Judge Murach's order for a pretrial conference was filed more
than one year before Mack's request for substitution.
Mack
also asserts that Judge Murach "meddled" with this case by holding ex
parte proceedings. Ex parte
proceedings are permissible so long as they comply with Supreme Court Rule
60.20.[3] Mack does not claim that such ex parte
proceedings resulted in any procedural or tactical advantage to any party. Thus, Judge Murach did not err by holding ex
parte proceedings.
Mack
also claims that the second cross-claim naming Judge Murach as a party
precluded Judge Murach from dismissing the counterclaim and two
cross-claims. Section 757.19(2), Stats., provides in part:
Any judge shall disqualify himself or herself
from any civil or criminal action or proceeding when one of the following
situations occurs:
....
(b) When
a judge is a party or a material witness, except that a judge need not
disqualify himself or herself if the judge determines that any pleading
purporting to make him or her a party is false, sham or frivolous.
(Emphasis added.)
Mack's
second cross-claim was a transparent attempt to obtain a substitution of judge
after Mack was prohibited from doing so by § 801.58(1), Stats. Judge Murach did not disqualify himself. Had Judge Murach determined that Mack's
request was sham or frivolous, we would agree.
But because § 66.119(3)(b), Stats.,
required Judge Murach to dismiss Mack's cross-claim against the judge, we need
not consider whether Mack's cross-claim was sham or frivolous. The cross-claim was improper, and without a
cross-claim against Judge Murach, there was no reason for Judge Murach to
disqualify himself.
SANCTIONS
Davis
asks us to impose sanctions upon Mack for Mack's scandalous and libelous claims
against the trial court and other parties.
In an order in this case dated April 12, 1995, Mack was warned that his
statement on transcript contained disrespectful and scandalous accusations
against the trial court. We concluded:
However, we notify
Mack that any further disrespectful and scandalous accusations against the
trial court, the parties or their counsel in these appeals will result in
sanctions under § 802.05(1), Stats.
This
order did not deter Mack. His briefs
contain the following statements:
(1) Later, by and at about July 29,
1994[,] the individual person Lewis Murach did attempt to cover up the earlier
misrepresentations by John Davis in the matter under color of law.
(2) This was met with a conspiracy
by the persons John Davis, Lewis Murach, Eagan Agency Ltd. to obstruct the due
administration of justice in this suit by selling plaintiff's land, state owned
land, and Davis land to an unsuspecting buyer for the illicit benefit of John
Davis and Eagan Agency, Ltd[.], giving rise to another cross[-]claim with Lis
Pendens against those parties.
(3) Lewis Murach not only usurped the
judicial power of the court in these actions, but did so in clear violation of
the law, and not only with the inability to act in an impartial manner but with
clear personal interest against appellant.
(4) Each
requirement of law was intentionally violated by Murach for his own selfish
gain ....
and
(5) Davis,
with the [C]ounty, developed a conspiracy to sell Davis land and public
property and some of Mack's property as though all was Davis property, for the
illicit gain of Davis and the conspirators.
These
remarks are as disrespectful and scandalous as the accusations Mack made about
Judge Murach giving rise to our April 12, 1995 order. They require a sanction, which we will order. The only question is, what sanction?
In
Support Sys. Int'l, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995),
the court examined Mack's dishonest and frivolous pro se litigation
behavior. The court concluded that the
imposition of monetary sanctions had no effect on Mack. Id. at 186. Consequently, it concluded that the best
sanction was to order the clerks of the federal courts within the Seventh
Circuit to return unfiled any papers submitted either directly or indirectly by
or on behalf of Richard Mack, with the exception of criminal cases in which
Mack is a defendant and applications for habeas corpus. Id. at 186-87. The court permitted Mack to move to rescind
or modify the order after two years from the date of the order. Id. at 186.
We
recognize that Mack is indigent, at least for the purpose of being permitted to
file appeals without the payment of filing fees. We also recognize that any sanction we impose should be narrowly
tailored to serve its purpose. Our
purpose is to tame Mack's disrespectful and scandalous assertions in the
material he submits to this court and to the trial courts. Though we recognize that monetary sanctions
have no effect on Mack, a monetary sanction is a start. It is our intent that further disrespectful and
scandalous statements made by Mack will be met with a sanction similar to the
one meted out by the Seventh Circuit.
It is our hope that the possibility of such a sanction will have the
desired effect on Mack's future behavior.
Accordingly, Richard Mack is ordered, by way of sanction, to pay to the
Clerk of the Court of Appeals, 231 East State Capitol, P.O. Box 1688, Madison,
WI, 53701, the sum of $100. As a
further sanction, respondents may tax treble costs.
By
the Court.—Judgment and orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] We take judicial notice that Waushara County
has only one circuit judge. Mack does
not explain who other than Judge Murach would be assigned to this case. Nor does he explain why an
"assignment," a ministerial function of the clerk's office, is
significant.
[2] Section 801.58(1), Stats., provides:
Any party to a
civil action or proceeding may file a written request, signed personally or by
his or her attorney, with the clerk of courts for a substitution of a new judge
for the judge assigned to the case....
If a new judge is assigned to the trial of a case, a request for
substitution must be made within 10 days of receipt of notice of assignment
....
[3] Supreme Court Rule 60.20(2), provides in
part:
A judge may
initiate, permit, engage in or consider ex parte communications for scheduling,
administrative purposes or emergencies that do not deal with substantive
matters or issues on the merits if all of the following conditions are
met:
(a) The judge
reasonably believes that no party will gain a procedural or tactical advantage
as a result of the ex parte communication.