Wisconsin Lawyer
Vol. 79, No. 3, March 2006

Appealing Municipal Court Judgements to Circuit Court

by Rex R. Anderegg

sk anyone whether they have ever been named as a defendant in a governmental prosecution and chances are they will quickly respond in the negative. Probe further, however, and you may realize that at some point in their lives many people have, in fact, been a named defendant in one of Wisconsin's 240 municipal courts.¹ Indeed, for many people, municipal court is the only forum in which they will ever come into contact with the legal system as a litigant.

Wisconsin's municipal courts handle a large volume of cases each year. In 2004, for example, Wisconsin municipal courts disposed of nearly 550,000 cases.² From simple parking tickets to quasi-criminal cases, from building code violations to nuisance-type infractions, from juvenile matters to a variety of traffic offenses, municipal courts are the courts of original jurisdiction for a myriad of disputes. Municipal courts are not, however, always the final forum for these cases. A party aggrieved by an adverse municipal court judgment is statutorily entitled to review by the circuit court in the county in which the municipality is located.³

Circuit court review of a municipal court judgment can take one of two forms. An aggrieved party may request a simple record review.⁴ In the alternative, an aggrieved party may request a new trial and designate whether the trial will be to the court or to a jury.⁵ This article examines these two basic forms of review, the mechanics of perfecting either one, and important considerations that come into play when electing between them. These considerations are further examined with special emphasis on two recent Wisconsin Supreme Court decisions that directly affect what form of review can and should be requested, and on whether the right to a jury trial in such cases is purely statutory or also has a constitutional underpinning.

Commencing an Appeal to the Circuit Court

The first step in appealing a municipal court judgment is determining whether the putative appellant is an aggrieved party. In Town of Menasha v. Bastian,⁶ the court of appeals noted that only an "aggrieved party" - that is, a party "adversely" affected in some "appreciable manner" - can commence an appeal.⁷ Given this definition, the vast majority of cases will involve only a single, obviously aggrieved party. Nevertheless, counsel should carefully consider the disposition of all aspects of the case because, as two court of appeals cases demonstrate, it is possible for both parties to be aggrieved, and the matter is not always clear.

In East Troy v. Town & Country Waste Service,⁸ for example, the court of appeals held that both the defendant, who was found guilty, and the municipality, which contested the forfeiture amount, were aggrieved parties. Of even greater practical significance, however, is Bastian's holding that a municipality is aggrieved if the municipal court dismisses a charge without a finding of guilt, even if the dismissal is required by law.⁹ In Bastian, the defendant appealed his operating while intoxicated (OWI) conviction. The municipality, however, did not appeal the dismissal of the companion prohibited alcohol concentration (PAC) charge even though there was never a finding of guilt. The Bastian court held that under these circumstances, the circuit court did not have jurisdiction over the PAC charge. The Bastian court was not persuaded by the town's contention that "shrewd defense attorneys" could wait until the 20th day to appeal a conviction, thus leaving the municipal attorney without sufficient notice to respond in kind.¹⁰ The Bastian court noted that municipalities can put the municipal court on notice to make specific findings of guilt on both the OWI and PAC charges and if the municipal court refuses, take a protective appeal.¹¹

Once counsel confirms that her client is an aggrieved party, counsel perfects the appeal by filing a notice of appeal in the municipal court within 20 days of the docket entry.¹² Defense attorneys should be aware that on appeal, execution of a municipal court judgment is automatically stayed pending final disposition of the appeal.¹³ By statute, however, a defendant must execute a bond to the municipality, with or without surety. The bond, which must be approved by the municipal judge, guarantees that if the judgment is affirmed, the defendant will pay the judgment and all costs awarded on appeal.¹⁴ In practice, many municipalities will waive the bond requirement, and counsel should therefore consult the municipal court clerk before filing an appeal to determine whether a bond will be necessary. Most importantly, the notice of appeal must indicate whether the appealing party is requesting a record review or a new trial, and in the case of a new trial, whether it will be to the court or to a jury.

The Record Review

All municipal court proceedings in which sworn testimony is taken must be recorded electronically.¹⁵ When a party requests a record review, the municipal court judge must direct that a transcript of the proceedings be prepared from the electronic recording and must certify the transcript.¹⁶ Both the transcript and the electronic recording are then transferred to the circuit court for review.¹⁷ In Village of Williams Bay v. Metzl,¹⁸ the court of appeals noted that the standard of review when a trial court reviews a municipal court record is analogous to the court of appeals' own review of a circuit court decision.¹⁹ Thus, the municipal court's findings of fact will not be set aside by the circuit court unless they are clearly erroneous, and due regard will be given the opportunity to assess the credibility of witnesses.²⁰

Although most circuit courts will generally request briefs or hold a hearing before rendering a decision on a record review, in City of Middleton v. Hennen²¹ the court of appeals held that section 800.14 does not technically require either briefs or a hearing.²² The Hennen court held that a circuit court could simply review the record and issue a decision affirming or reversing the municipal court.²³ The Hennen court reasoned that deprivation of a hearing or an opportunity to file briefs does not violate a party's due process right "to be heard" because an aggrieved party has the option of being fully heard by electing the other mode of appeal: the new trial.²⁴ As examined later in this article, however, the holding in Hennen is ripe for reexamination given a recent Wisconsin Supreme Court decision that restricts when a party actually has the option of requesting a new trial.

The New Trial

Rather than request a transcript review, an aggrieved party can demand a new trial,²⁵ in which situation the circuit court must conduct a new trial and cannot remand the proceeding to the municipal court for a trial.²⁶ Before selecting a new trial, counsel should consider what burden of proof will apply in circuit court. Under Wis. Stat. section 800.08(3), municipal ordinance violations must be proven by clear, satisfactory, and convincing evidence. By contrast, the applicable burden of proof in circuit court for civil forfeiture actions historically has been a mere preponderance of the evidence.²⁷ It appears any tension can be resolved by examining the category of the charge on appeal. If the ordinance at issue is couched in terms of the municipality's general regulatory powers, the lower burden of proof will likely apply in circuit court.²⁸ Yet, if the alleged ordinance violation involves an act that also is made criminal by statute, it appears the violation still must be proven by clear, satisfactory, and convincing evidence.²⁹

Whatever the burden of proof, the election of a new trial must be made with great care because the Wisconsin Supreme Court, in City of Pewaukee v. Carter,³⁰ recently ruled that such mode of appeal is available only if there has first been a trial in the municipal court. This has not always been the situation. The statutory scheme governing the appeal of municipal court judgments has undergone significant changes over the years. Indeed, before 1978, any defendant, regardless of the charge, could immediately bypass municipal court simply by requesting a jury trial within 10 days of the initial appearance.³¹ In the alternative, a pre-1978 defendant could leave the action in municipal court and, in the event of an adverse judgment, appeal the matter to circuit court.³² The statutes provided for a "trial de novo" on appeal, which the court of appeals opined included a trial by jury, if the defendant was so inclined.³³

All of this changed on July 1, 1978, when new rules for appealing municipal court judgments took effect.³⁴ Under the new statutes, the only way a municipal court defendant could exercise the right to a jury trial was to demand a jury trial within 10 days of entering a plea. This option was no different than the previous statute. A significant change, however, was that if a defendant failed to make such a demand and opted to leave the case in municipal court, any subsequent "trial de novo" to the circuit court would be "without a jury."³⁵ With this change the legislature hoped to relieve circuit courts of the burden posed by jury trials by making them unavailable following municipal court disposition. Unfortunately, it was a legislative miscalculation. Because defendants were presented with a "use it or lose it" right to a jury trial at the outset of the municipal court action, an unanticipated number of defendants chose to "use it" and bypass municipal court, thereby shifting to the circuit courts a disproportionate burden for resolving these cases.

This prompted the legislature to again amend the statutes.³⁶ Consequently, since Nov. 1, 1988, only defendants charged with OWI violations have retained the option of immediately bypassing municipal court.³⁷ All other defendants now must resolve their cases in municipal court before making an appeal to the circuit court. Legislative history confirms that this change was intended to reduce the excessive number of defendant requests to bypass municipal court and have a jury trial in circuit court.³⁸ The legislature also modified the scheme, however, by restoring the right of the appealing party to elect a jury trial in the circuit court.

As it turned out, the most profound change in the 1987 amendment was the insertion of the phrase "a new trial" to supplant the formerly used phrase "trial de novo." Though similar in meaning, some people suggested the phrase "a new trial" expressed the legislature's intent to preclude "new trials" in circuit court unless there had first been "a trial" in the municipal court. Proponents of this interpretation suggested that the legislature may have remembered, and was determined to prevent, the pre-1978 parade of defendants who simply entered a plea (or allowed a default judgment to be taken) and then requested a "trial de novo." Removal of the phrase "trial de novo" arguably expressed this intent because that phrase historically has been taken to mean "as if no trial whatsoever had been had in the first instance."³⁹ "Trial de novo" was therefore a poor phrase to express an intent that a municipal court trial serve as a prerequisite for "a new trial" in circuit court. That phrase, therefore, had to be replaced and the language "a new trial" served the purpose.

In 1999 the court of appeals gave judicial approval to this interpretation. In Village of Menomonee Falls v. Meyer,⁴⁰ a municipal OWI trial was halted before testimony was taken when the village could not prosecute its case because a needed police report had been suppressed due to a discovery violation. When the municipal court dismissed the charges, the village requested a new trial in circuit court.⁴¹ Meyer moved to dismiss the appeal on the ground that Wis. Stat. section 800.14(4) does not permit a party to obtain a new trial in circuit court when a case has been judicially resolved, but not fully litigated on the merits, in the municipal court. The circuit court disagreed, denied Meyer's motion, and allowed a new trial.

The court of appeals reversed, reasoning that the 1987 modification of Wis. Stat. section 800.14(4) revealed the legislature's intent to "reduce the number of circuit court jury trial requests from municipal ordinance violations" because the word "new" implies the issue had been "fully litigated at an earlier time."⁴² Accordingly, Meyer held that the village should have been barred from obtaining a "new" trial in circuit court. The Meyer court noted there had been another remedy available to the village - a record review of the municipal court proceedings - but ruled the opportunity to pursue that remedy was lost when the village elected a "new trial."⁴³

Three important lessons arose out of Meyer. First and most significantly, Meyer confirmed what had been long suspected: an aggrieved party has no standing to request a new trial in circuit court unless there has first been an original trial in municipal court. Second, the failure to request the available form of review will be fatal to the appeal; neither judicial construction nor a permissive amendment will be allowed to remedy a faulty notice of appeal. Third, dismissal of a municipal case before the production of witnesses will not constitute "a trial" for purposes of requesting "a new trial."

The Wisconsin Supreme Court Weighs In

Meyer left unresolved, however, what the result would be if the action were dismissed at the close of the municipality's case for failure of the municipality to meet its burden of proof. Would such a proceeding constitute a trial? This was the question the Wisconsin Supreme Court took up in City of Pewaukee v. Carter, which, like Meyer, also involved a municipal prosecution on OWI and PAC charges. In Carter, the city of Pewaukee rested its case after presenting testimony from three witnesses. A fourth potential witness - the arresting officer who could have established a foundation for the admissibility of Carter's blood test - was unavailable and did not testify. The blood test results were therefore suppressed and the PAC charge dismissed. After the city rested, but before Carter put on any evidence, Carter moved for dismissal of the OWI charge. Carter argued that without the blood test result and testimony from the arresting officer, there was insufficient evidence to prove he was intoxicated at the time of operation. The municipal court agreed and granted Carter's motion.

Following the judgment of dismissal, the city requested a "new trial." Carter, in turn, asked the circuit court to dismiss the appeal because the municipal court proceeding was not a "fully litigated" trial and therefore, the city could not properly request "a new trial." The circuit court agreed and relying on Meyer, granted Carter's motion. In a published opinion, the court of appeals affirmed.⁴⁴ The Wisconsin Supreme Court granted the city's petition for review and framed the issue as: "Did the municipal court proceeding constitute a `trial' under §800.14(4) when the City presented sworn witnesses, those witnesses were cross-examined by the defendant, and the case was dismissed with prejudice upon the defendant's motion to dismiss at the close of the City's case-in-chief?"⁴⁵

The supreme court first confirmed that an appealing party has no standing to request a new trial unless there previously has been a trial in municipal court.⁴⁶ The supreme court, however, took a broader view as to what constitutes a municipal court trial. Specifically, the Carter court reasoned that the municipal court proceeding it was reviewing did constitute a "trial" because the city presented its case, Carter had an opportunity to present evidence (though he declined to do so when he instead moved for dismissal), and the matter was judicially resolved on its merits. Thus, the municipal court proceeding had triggered the city's statutory right to a new trial.

As noted earlier, the ruling in Carter invites revisiting of the holding in Hennen that a circuit court can dispose of a record review without allowing briefs or holding a hearing. The Hennen court reasoned that such a summary procedure was not an affront to due process principles because the appellant could have elected a new trial. In the wake of Carter, however, there will be cases in which the appellant cannot request a new trial because the municipal court adjudicated the case before it reached trial. In such situations, a record review will be the only permissible form of appeal, and due process principles should therefore require an opportunity for the parties to be heard.

The Constitutional Right to a Jury Trial

By vesting the appealing party with the sole authority to designate the mode of appeal, Wis. Stat. section 800.14(4) treats appellants and respondents differently. Respondents who prevail in municipal court who would prefer a jury trial on appeal are at the mercy of the appealing municipality, which generally elects a bench trial. In the 1993 case Village of Oregon v. Waldofsky,⁴⁷ the court of appeals addressed, on equal protection grounds, the constitutionality of a statutory scheme that allows a party appealing to circuit court to demand a jury trial, while not affording the same right to the respondent.

Waldofsky involved an OWI defendant who won his case in municipal court but subsequently lost in a circuit court bench trial, which was the mode of appeal the municipality chose. The defendant complained that the statutory scheme was unconstitutional because it deprived him (and all respondents) of the opportunity to request a jury trial on appeal. The Waldofsky court disagreed that respondents are irrationally singled out and denied a jury trial because, the court said, persons charged with OWI do have the opportunity for a jury trial, provided they demand the same within 10 days of their initial appearance. The Waldofsky court reasoned that the only effect the statutory paradigm has on the class of which Waldofsky was a member - drunk driving defendants - was to warn the class members they must exercise their right to a circuit court jury trial at a certain point in the proceedings or waive that right. So viewed, the statutes simply set forth the risks of choosing one procedural route over another, and the situation they create is not an unconstitutional denial of equal protection, but one routinely faced by litigants in civil cases.⁴⁸

The Waldofsky decision reminds defense attorneys to be on their toes at the outset of a municipal OWI case. The decision to leave an OWI case in municipal court is a calculated risk, for if the defendant prevails, the municipality alone will choose the mode of appeal and the defendant's failure to have immediately demanded a jury trial may result in a permanent waiver of that right. Some defense attorneys minimize this risk by not presenting a trial defense in municipal court, which largely ensures their clients will be aggrieved parties and thus able to designate the mode of appeal. This approach has the added benefit of allowing the defendant a measure of additional discovery, an approach the Wisconsin Supreme Court, while not sanctioning, has recognized is a policy choice made by the legislature.⁴⁹ Defense attorneys should be especially cognizant of preserving the right to a jury trial in any civil forfeiture action originating in circuit court in which the county or state is the plaintiff or the municipality does not have its own court, but instead, has contracted with the county circuit court to adjudicate its citations. Under these scenarios, a jury trial must be immediately demanded or forever lost.⁵⁰

Nevertheless, Waldofsky left unresolved whether the application of constitutional principles might compel a different result in the case of a non-OWI municipal defendant who would not be statutorily entitled to request a jury trial at the front end of his or her case. In City of Kenosha v. Leese,⁵¹ the court of appeals held, in the case of a defendant who had prevailed on a battery charge in municipal court, that the defendant's constitutional rights were not denied when the municipality appealed and elected not to request a jury trial.⁵² Although Leese dealt largely with the issue of equal protection, the appellate court also opined, in passing, that there is no constitutional right to a jury trial in a municipal ordinance prosecution.⁵³

A recent Wisconsin Supreme Court decision, however, calls into question this aspect of Leese, at least as it pertains to traffic cases. In Dane County v. McGrew,⁵⁴ the defendant was convicted of speeding by a panel of six jurors after the circuit court denied his request, under the Wisconsin Constitution, for a panel of 12 jurors. The Wisconsin Supreme Court addressed McGrew's constitutional claim and, in so doing, grappled with two questions: 1) whether McGrew had a constitutional right to a jury trial; and 2) if so, whether the jury would have to be comprised of 12 persons, rather than just six. The second of these questions turned out to be fatal for McGrew, as the majority of justices agreed the Wisconsin Constitution did not guarantee him a jury of 12 persons.

The supreme court, however, was fractured over the threshold question of whether Article I, Section 5 of the Wisconsin Constitution guaranteed McGrew a right to a jury trial in the first place. While all the justices agreed that resolving this question depended on applying the test the court had formulated in Village Food & Liquor Mart v. H&S Petroleum Inc.,⁵⁵ there was little agreement over the outcome yielded by the analysis. Indeed, each faction had a different answer to the central question posed by the Village Food & Liquor test: whether McGrew's speeding charge was sufficiently analogous to a cause of action recognized at common law when the Wisconsin Constitution was adopted in 1848.

The lead opinion, authored by Justice Prosser and joined by Justices Wilcox and Roggensack, favored a strict application of the test and examined whether either the offense of speeding, or a cause of action that either only "differed slightly" or was "essentially a counterpart," existed in 1848. Concluding that no such cause of action existed, the lead opinion ruled McGrew had no constitutional right to a jury trial - period.

A majority of the court, however, reached the opposite conclusion. In a concurring opinion, Justice Bradley (joined by Chief Justice Abrahamson and Justice Crooks) preferred a broader application of the Village Food & Liquor test. Noting there were "laws of the road" violations recognized at common law in 1848, Justice Bradley viewed those violations as the predecessors to the "rules of the road" violations recognized today.⁵⁶ Consequently, the concurrence concluded McGrew did have a right under the Wisconsin Constitution to a jury trial. Nevertheless, Justice Bradley affirmed McGrew's conviction because he was afforded a jury trial, and although McGrew's jury was comprised of only six persons, Justice Bradley concluded that in 1848, analogous offenses were tried to precisely that number of jurors.

With three justices deeming McGrew constitutionally entitled to a jury trial and three justices insisting McGrew had no such right, it was left to Justice Butler to break the impasse. The newest justice did so in a dissenting opinion that concluded that not only did McGrew have a right to a jury trial under the Wisconsin Constitution, but that said right required a jury composed of 12 members. Thus, four of the seven justices ruled McGrew had a right under the Wisconsin Constitution to a jury trial.

The decision in McGrew therefore alters the constitutional framework for analyzing the right to a jury trial for municipal ordinance violations, albeit not for all defendants. McGrew does not, for example, likely alter the Waldofsky court's ruling that OWI defendants who prevail in municipal court cannot complain if the municipality appeals and designates the new trial as one to the court. Such defendants, after all, could have demanded a jury trial out of the gate, and a knowing waiver of a constitutional right will generally preclude a later claim of a procedural deprivation of the right.⁵⁷ The decision in McGrew does, however, call into question the constitutionality of denying a jury trial to similarly situated non-OWI defendants, who are statutorily barred from demanding a jury trial at the front end of their municipal court proceedings.

Indeed, following McGrew, it would appear that municipal court defendants charged with speeding violations can no longer be barred from obtaining a jury trial on appeal, even when the municipality is the aggrieved party and designates a bench trial as the mode of appeal. In fact, it does not appear defendants charged with any violation of the contemporary "rules of the road" can be denied a jury trial on appeal. What remains an open question is whether the ruling in McGrew can be extended to nontraffic municipal violations (that is, battery, retail theft, and so on). Defense attorneys who wish to so extend McGrew will need to convince the circuit court that the particular charge in question is sufficiently analogous to a cause of action existing at common law in 1848. Defense attorneys representing juveniles in municipal court, however, may find they are barred by the Wisconsin Supreme Court's decision in State v. Hezzie R., wherein the Wisconsin Supreme Court ruled the Wisconsin Constitution does not guarantee juveniles a jury trial.⁵⁸

Finally, practitioners should not assume the door has been entirely closed on the question of 12-person juries in all appeals from municipal court. As already noted, Justice Butler believes a 12-person jury is constitutionally required in traffic cases. Because the lead opinion adopted a violation-specific approach and limited its analysis to speeding charges, it refused to rule out the possibility of a constitutional right to a 12-person jury in other types of cases (for example, deviation from lane).⁵⁹ Thus, regarding the issue of a 12-person jury, all McGrew says with certainty is that a defendant charged with "speeding" is only entitled to a jury of six.⁶⁰ The door has therefore been left ajar for the possibility of a constitutional right to a 12-person jury in other types of municipal forfeiture cases.

Conclusion

While there may be a tendency to view municipal court actions as matters of relatively minor importance, the consequences flowing from such actions can be significant. Litigants can lose their operating privileges in a variety of ways, forfeitures can be burdensome, and failure to pay a forfeiture can result in incarceration.⁶¹ Moreover, because a municipal court proceeding affords a fair opportunity procedurally, substantively, and evidentially to litigate an issue, the doctrine of issue preclusion will prohibit a party from relitigating that issue in a subsequent and separate civil action.⁶²

Accordingly, the right to appeal an adverse municipal court judgment is an option practitioners should seriously consider and discuss with their clients at the outset of each case. If counsel believes there is a strong factual defense and desires a jury as the ultimate finder-of-fact, great care and forethought are indispensible. To this end, it is important to recognize the distinction between OWI and non-OWI cases. If the charge is OWI, defense counsel may wish to immediately demand a jury trial. Counsel in OWI cases (and all cases except speeding) may also want to consider demanding a 12-person jury.

If the charge is not OWI and a factual defense is preferred, counsel must ensure there is a trial in municipal court as a prelude to demanding a new trial with a jury in circuit court. In the wake of Carter, it will be sufficient if the municipality calls witnesses and rests its case. In the wake of McGrew, counsel in traffic cases can go for broke, confident that even if they prevail and the municipality appeals, such defendants have a constitutional right to be tried by a jury.

On the other hand, if the outcome in municipal court turns on a legal or procedural issue and is thus resolved short of trial, the aggrieved party is only entitled to a record review, regardless of the type of case, and failure to designate the appeal as a record review will be fatal. In such a case, due process principles should compel the circuit court to hold a hearing or at least to allow briefs. A comprehensive, well-conceived approach to handling municipal court matters that keeps all of these guideposts in mind will increase the odds of a favorable disposition.

Endnotes

¹Provided by Judge Ronald Wambach, secretary/treasurer of the Wisconsin Municipal Judges Association, Ltd.

²Wisconsin Taxpayers Alliance, Municipal Courts Resolved over Half of Wisconsin Court Cases, Aug. 25, 2005 <http://www.wistax.org/news_releases/2005/0507.html>.

³Wis. Stat. § 800.14.

⁴Wis. Stat. § 800.14(5).

⁵Id.

⁶Town of Menasha v. Bastian, 178 Wis. 2d 191, 503 N.W.2d 382 (Ct. App. 1993).

⁷Id. at 194-95.

⁸East Troy v. Town & Country Waste Serv., 159 Wis. 2d 694, 465 N.W.2d 510 (Ct. App. 1990).

⁹Bastian, 178 Wis. 2d at 196.

¹⁰Id. at 196-197.

¹¹Id.

¹²Wis. Stat. § 800.14(1).

¹³Wis. Stat. § 800.14(3).

¹⁴Wis. Stat. § 800.14(2).

¹⁵Wis. Stat. § 800.13(1).

¹⁶Wis. Stat. § 800.14(5).

¹⁷Id.

¹⁸Village of Williams Bay v. Metzl, 124 Wis. 2d 356, 369 N.W.2d 186 (Ct. App. 1985).

¹⁹Id. at 361.

²⁰Id.

²¹City of Middleton v. Hennen, 206 Wis. 2d 347, 557 N.W.2d 818 (Ct. App. 1996).

²²Id. at 350-51.

²³Id. at 354-55.

²⁴Id.

²⁵Wis. Stat. § 800.14(4).

²⁶City of Muskego v. Godec, 167 Wis. 2d 536, 539, 547-48, 482 N.W.2d 79 (1992) (circuit court cannot suppress chemical test results and dismiss PAC citation, and then remand to municipal court for further proceedings).

²⁷City of Cudahy v. DeLuca, 49 Wis. 2d 90, 92-93, 181 N.W.2d 374 (1970).

²⁸See Fond du Lac County v. Mentzel, 195 Wis. 2d 313, 329 n.2, 536 N.W.2d 160 (Ct. App. 1995).

²⁹City of Milwaukee v. Wilson, 96 Wis. 2d 11, 21-23, 291 N.W.2d 452 (1980).

³⁰City of Pewaukee v. Carte, 2004 WI 136, 276 Wis. 2d 333, 688 N.W.2d 449.

³¹Wis. Stat. § 300.04 (1975).

³²Wis. Stat. § 300.10(5) (19__).

³³Village of Menomonee Falls v. Michelson, 104 Wis. 2d 137, 151, 311 N.W.2d 658 (Ct. App. 1981).

³⁴Wis. Stat. § 31, ch. 305, Laws of 1977, repealed and recreated as Wis. Stat. chapter 300.

³⁵See Wis. Stat. §§ 300.04(1)(d) (1977), 800.14(4) (1986-87).

³⁶Amended by 1987 Act 389, §30, effective Nov. 1, 1988. See also 1987 Bill Draft Request Form from Cheryl Wittke to Senator Adelman, Dec. 4, 1986.

³⁷Wis. Stat. § 800.04(1)(d).

³⁸See Fiscal Estimate - 1987 Senate Bill 379.

³⁹See, e.g., Michelson, 104 Wis. 2d at 149-51.

⁴⁰Village of Menomonee Falls v. Meyer, 229 Wis. 2d 811, 601 N.W.2d 666 (Ct. App. 1999).

⁴¹Id. at 813.

⁴²Id. at 815, 817.

⁴³Id. at 817n18.

⁴⁴City of Pewaukee v. Carter, 2003 WI App 260, 268 Wis. 2d 507, 673 N.W.2d 380.

⁴⁵Id. ¶ 3.

⁴⁶Id. ¶ 15.

⁴⁷Village of Oregon v. Waldofsky, 177 Wis. 2d 412, 501 N.W.2d 912 (Ct. App. 1993).

⁴⁸Id. at 421.

⁴⁹City of Sun Prairie v. Davis, 226 Wis. 2d 738, 753-56, 595 N.W.2d 635 (1999).

⁵⁰See Wis. Stat. § 345.425.

⁵¹City of Kenosha v. Leese, 228 Wis. 2d 806, 598 N.W.2d 278 (Ct. App. 1999).

⁵²Id. at 810.

⁵³Id. at 811. See also Michelson, 104 Wis. 2d at 146.

⁵⁴Dane County v. McGrew, 2005 WI 130, ___ Wis. 2d ___, 699 N.W.2d 890.

⁵⁵Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177.

⁵⁶McGrew, 2005 WI 130, ¶ 60, __ Wis. 2d __.

⁵⁷See Waldofsky, 177 Wis. 2d at 421-22.

⁵⁸State v. Hezzie R., 219 Wis. 2d 848, 580 N.W.2d 660 (1998).

⁵⁹McGrew, 2005 WI 130, ¶¶ 48-49, __ Wis. 2d __.

⁶⁰Id. ¶ 49.

⁶¹Wis. Stat. §§ 800.09, .095(4).

⁶²Masko v. Madison, 2003 WI App. 124, ¶ 15, 265 Wis. 2d 442, 665 N.W.2d 391.

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