|
COURT OF
APPEALS DECISION DATED AND
RELEASED March
28, 1996 |
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. |
No. 95-2377
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
PASTORI
M. BALELE,
Defendant-Appellant,
DEPARTMENT
OF ADMINISTRATION,
Garnishee-Defendant-Respondent.
APPEAL
from an order of the circuit court for Dane County: MICHAEL NOWAKOWSKI, Judge.
Affirmed.
EICH,
C.J.[1] Pastori M. Balele appeals from an order
denying his motion to stay proceedings in this garnishment action pending the
decision of the United States Court of Appeals for the Seventh Circuit in the underlying
federal action on which the garnishment is based.
We
begin by noting that we are somewhat hampered in this appeal because the
proceedings associated with an earlier appeal in the case are not part of the
instant record, though both parties refer us generally to briefs and other
materials purportedly contained in that record.[2]
As
best we can piece them together from the record, the facts are as follows. Balele, an employee of the Wisconsin
Department of Administration, has filed several civil rights actions in state
and federal courts relating to his failure to achieve job promotions over the
years. All of his actions have been
dismissed, and the judgments of dismissal included awards of costs to the
various defendants, all of whom are state officials.
One
of the suits, against Gerald Whitburn, former secretary of the Wisconsin
Department of Health and Social Services, was dismissed on summary judgment in
the United States District Court for the Western District of Wisconsin. Balele appealed the dismissal to the Seventh
Circuit and, while the appeal was pending, the State of Wisconsin, having
received assignments of the judgments from twenty-six of the defendants in
Balele's unsuccessful actions, commenced a garnishment action to recover these
costs.
This
appeal is from the circuit court's denial of Balele's motion to "[d]elay
the proceeding and enforcement of the garnishment because the case [the Whitburn
action] which precipitated this garnishment proceeding is on appeal [to the
Seventh Circuit]." In his motion,
Balele also stated that the garnishment action would "financially
hurt" him and his family, "was interposed by [the state's attorney]
... selectively to harass Balele because of his race" and was commenced
solely to "harass" him because the assistant attorney general
representing Whitburn was "mad" at him.
At
the hearing on the motion, Balele told the court: "My motion basically is
based on the fact that the case is on appeal and ... when a case is on appeal
attorney fees and costs are not awarded until the appeal is
resolved." He also complained that
he lacked the means to pay the judgments.
Balele concluded, "So Your honor, I am before you to ask you to
delay this proceeding until the decision of the appeals court and then they can
proceed on it so easily."
The
trial court, ruling that Balele was subject to a valid judgment of the district
court which, unless stayed, is subject to collection--and noting that the
federal courts had refused to stay the judgments pending Balele's
appeal--denied his request for a stay and proceeded to take evidence on his
claim that he was unable to afford the garnishment and that the statutory
exemptions were insufficient to avoid a hardship to himself and his family.
After
hearing the evidence, the court found that Balele's monthly income was $2006
per month and that his other debts and financial obligations did not warrant
dismissal of the garnishment action.
Finding, however, that granting him the statutory exemption of only
eighty percent of his disposable income "would result in some hardship to
him," the court increased the exemption to ninety percent and entered an
order allowing the action to proceed on that basis. It is from that order that Balele appeals.
Balele's
argument is essentially limited to assertions that the state's attorneys, whom
he describes as "DOJ gang-members," fraudulently commenced this
action in order to "punish him and his family because of his race and
national origin," and in retaliation for his legal actions against his
present and prospective employers--in his words, in order to "stifle [him]
from asserting his civil rights and those of other blacks." In his brief, he purports to support these
assertions by reference to documents which are not part of the record on
appeal.
As
we have noted, supra note 2, it is Balele's responsibility to provide us
with a record supporting his arguments and assertions, and our consideration of
his appeal is limited to the appellate record as he has supplied it to us. We also note that Balele did not argue or
offer any evidence on these assertions at the hearing before the trial court;
and it is equally axiomatic that we will not consider issues raised for the
first time on appeal. Wengerd v.
Rinehart, 114 Wis.2d 575, 580, 338 N.W.2d 861, 865 (Ct. App. 1983).
We
consider first Balele's request that the trial court stay the garnishment
action pending a decision in his appeal to the Seventh Circuit Court of
Appeals. The Seventh Circuit has issued
a decision and order dated January 11, 1996, affirming the district court
decision in the underlying Whitburn action. It is a document of which we may properly
take judicial notice, and since the existence of the federal appeal formed the
basis for Balele's request for a stay, we agree with the State that this issue
has been mooted by the Seventh Circuit's decision.
Balele
argues, however, that we should consider that appeal as still pending because
he is seeking review of the Seventh Circuit's decision in the United States
Supreme Court. Citing City of Los
Angeles v. Lyons, 461 U.S. 95 (1983), he asserts that "[t]he
doctrine of mootness does not apply when there is proceedings still in
effect." But Lyons
does not stand for such a broad proposition.
Lyons sued the City of Los Angeles, claiming his civil rights were
violated when, in conjunction with a traffic stop, police officers grabbed him
and applied a "chokehold." Id.
at 97-98. Among other things, he sought
a permanent injunction barring the police from using such tactics in other than
"deadly-force" cases. Id.
at 98. The trial court issued a
temporary injunction to that effect and after the Supreme Court had granted the
city's petition for certiorari review, the Los Angeles Board of Police
Commissioners imposed a six-month moratorium on the use of chokeholds in
nondeadly-force situations. Id.
at 100. Lyons moved the Court to
dismiss the writ of certiorari as improvidently granted, given the new
city position. Id. at
101. The Court denied the motion,
concluding that the case was not moot because the six-month limitation on the
use of such tactics did not constitute an "[i]ntervening event[] ...
`irrevocably eradicat[ing] the effects of the alleged violation.'" Id. at 101 (quoting County
of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).
We
do not see Lyons as standing for the blanket rule urged by Balele. A motion to stay proceedings is committed to
the sound discretion of the trial court.
Section 806.08, Stats. In this case the trial court denied Balele's
request, reasoning that: (1) the authority of a state trial court to stay
enforcement of a valid federal court judgment is highly questionable; and (2)
Balele was aware of the procedures for seeking such a stay in the federal
courts--and in fact had sought such a stay, only to have his request
denied.
"We
will not reverse a discretionary determination by the trial court if the record
shows that discretion was exercised and we can perceive a reasonable basis for
the court's decision." Prahl
v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App.
1987). We are satisfied the trial
court's decision meets that test, and we affirm its denial of Balele's request
for a stay.
Finally,
Balele devotes something less than a single page of his forty-page principal
brief to his argument that he is unable to pay. The page is no more than a list of statements--unsupported by any
reference to the record--that he is having problems paying his bills and his
family is complaining about the lack of funds.
We do not consider arguments that are inadequately briefed, or
unsupported by citations to authority or references to the record. State v. Pettit, 171 Wis.2d
627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992); Lechner v. Scharrer,
145 Wis.2d 667, 676, 429 N.W.2d 491, 495 (Ct. App. 1988).
Beyond
that, having examined the transcript of Balele's testimony at the hearing, we
are not satisfied that the trial court's decision--that, employing the higher
ninety-percent exemption, the proposed garnishment would not reduce Balele's
household income to a point below the statutory poverty guidelines,[3]
or would not otherwise present a substantial hardship to Balele--is unsupported
by the evidence.
We
therefore affirm the trial court's order in its entirety.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] It is, of course, the appellant's
responsibility to ensure that evidence and other materials pertinent to the
appeal are in the record, and failure to incorporate such materials into the
record may constitute grounds for dismissal of the appeal. State v. Smith, 55 Wis.2d 451,
459, 198 N.W.2d 588, 593 (1972). Our
review is limited to those portions of the record available to us. In re Ryde, 76 Wis.2d 558,
563, 251 N.W.2d 791, 793 (1977).