COA declines to consider constitutional challenge to ordinance because defendant failed to serve ...

State v. Kevin Richard Raddemann, 2022AP668-CR, 12/21/22, District II (1-judge opinion, ineligible for publication); case activity (including briefs).

In this misdemeanor OWI case, Raddemann moved to suppress evidence obtained following a stop of his vehicle. After the suppression hearing, he moved for reconsideration, arguing that a City of Hartford cemetery ordinance, which was the basis for the stop, was unconstitutionally vague. The circuit court denied Raddemann’s motion to reconsider because it was untimely. ¶5.

The court of appeals’ decision address only one issue: whether Raddemann complied with Wis. Stat. § 804.06(11). The subsection contains two requirements relevant to this case: (1) “In an proceeding which involves the validity of a municipal ordinance or franchise, the municipality shall be made a party, and shall be entitled to be heard; and (2) “If a statute, ordinance or franchise is alleged to be unconstitutional, … the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.” The court holds that Raddemann failed to comply with the “notification and joinder requirements,” which “bars judicial review of a constitutional challenge” even when made as part of a defense and even though Raddemann raised an as applied challenge to the ordinance. Opinion, ¶¶7-9. For this reason, the court declined to consider the merits of Raddemann’s constitutional challenge to the ordinance.

Notably, the cases cited by the court make clear that when a party does not seek a declaratory judgment, failure to comply with Wis. Stat. § 806.04(11) “does not create a jurisdictional bar” and “a party’s failure to notify the attorney general is a curable defect.” See Brown County v. B.P., 2019 WI App 18, ¶¶25-27, 386 Wis. 2d 557, 927 N.W.2d 560; W.W.W. v. M.C.S., 161 Wis. 2d 1015, 1025 n.6, 468 N.W.2d 719 (1991); William B. Tanner Co. v. Estate of Fessler, 100 Wis. 2d 437, 444, 302 N.W.2d 414 (1981), abrogated on other grounds (failure to notify the attorney general of the circuit court proceedings “cured” by “subsequent invitation to the attorney general to participate in the court of appeals’ proceedings.”). Opinion, ¶¶7-9.