City of Superior v. Bachinski
| Court | Court of Appeals of Wisconsin |
| Citation | 835 N.W.2d 292,2013 WI App 94,349 Wis.2d 528 |
| Docket Number | No. 2013AP39.,2013AP39. |
| Parties | CITY OF SUPERIOR, Plaintiff–Respondent, v. Justin E. BACHINSKI, Defendant–Appellant. |
| Decision Date | 18 June 2013 |
OPINION TEXT STARTS HEREAppeal from a judgment of the circuit court for Douglas County: Kelly J. Thimm, Judge. Reversed and cause remanded with directions.
Justin Bachinski appeals a judgment imposing a forfeiture for speeding. Bachinski argues he could not be found guilty because the speed limit sign was obstructed by a tree branch. We agree and reverse and remand with directions to vacate the forfeiture judgment and enter a judgment of acquittal.
¶ 2 Bachinski was issued a citation for traveling thirty-four miles per hour in a twenty-five mile-per-hour zone on State Trunk Highway 35/Tower Avenue in the City of Superior. Bachinski contested the citation and demanded a trial.
¶ 3 The day before trial, Bachinski filed a brief, arguing he could not be found guilty of speeding because the City's “posting of a 25 mph sign was ineffective because the sign was obscured by tree foliage so that it was not legible to any person proceeding on ... State Highway 35[.]” In support of this argument, Bachinski emphasized that, pursuant to Wis. Stat. §§ 346.57(6)(a) and 349.065, the City was required to post the speed limit sign and to keep the sign in compliance with the Manual on Uniform Traffic Control Devices (MUTCD). He argued the MUTCD required that signs not be obscured by shrubbery, and, because the sign in this case was covered by a tree branch, it was therefore not in compliance with the MUTCD, and he could not be guilty. At trial, three photographs of the speed limit sign and tree foliage were admitted into evidence.
¶ 4 The circuit court delayed rendering judgment on the speeding citation so the City could respond to Bachinski's brief. The City subsequently filed a brief, arguing the speed limit sign complied with the MUTCD. It explained that the MUTCD provision that municipalities ensure posted signs were not obstructed by shrubbery was a recommended provision. The provision was not mandatory. Accordingly, the City argued its speed limit sign complied with the MUTCD and Bachinski should be found guilty of speeding.
¶ 5 In reply, Bachinski argued “[t]he purpose of traffic signs is to inform the motoring public of the speed limits.” He asserted that, based on this purpose, it “makes no sense” for the MUTCD provision to be only a recommendation. He then argued, “[t]o hold that regardless of whether [the] speed control sign can be seen or not, that the traveling public is required to conform to speed limits that they could not possibly be aware of would fly in the face of common sense and justice.”
¶ 6 In its oral decision, the circuit court concluded:
I'm convinced by reviewing the case cited by the City ... and reading the statute and the accompanying provisions of the MUTCD, that [the provisions on maintenance and shrubbery removal are] not mandatory. They're discretionary or they're guidance I guess is the more official term. Whether somebody should be able to see the sign or not apparently is guidance.
I'm not saying it was wise not to make sure the sign didn't have the shrubbery in front of it which I agree with [Bachinski]. It clearly did[,] but on the other hand, that's not what the statute [requires].
....
So under the circumstances, I am led to the conclusion that the defendant is guilty of the speeding violation....
¶ 7 Bachinski renews his assertion that he cannot be guilty of speeding because the posted speed limit sign was obscured by a tree branch. However, he no longer relies on the MUTCD in support of that argument. Instead, Bachinski relies for the first time on Wis. Stat. § 346.02(7). That statute provides a traffic code provision may not be enforced against an alleged violator if a sign is required by statute to be posted, and, at the time of the alleged violation, the sign is “not in proper position and sufficiently legible to be seen by an ordinarily observant person.” See id. Bachinski argues that because the City was required to post the twenty-five-mile-per-hour speed limit sign, seeWis. Stat. § 346.57(6), and because the circuit court found the sign was obstructed by a tree branch, he cannot be found guilty of speeding because of § 346.02(7).
¶ 8 The City responds Bachinski is precluded from making this argument because it is being raised for the first time on appeal. The City points out that, although “Bachinski complained generally of an obstructed traffic sign[,]” he never specifically relied on Wis. Stat. § 346.02(7) in the circuit court.
¶ 9 Bachinski, however, insists he is not improperly raising a new issue on appeal. He emphasizes he repeatedly argued in the circuit court that he could not be guilty of speeding because the speed limit sign was obstructed by a tree branch. He asserts his new reliance on Wis. Stat. § 346.02(7) is simply a variation of the argument he made in the circuit court.
¶ 10 Generally, we do not consider issues raised for the first time on appeal. Shadley v. Lloyds of London, 2009 WI App 165, ¶ 25, 322 Wis.2d 189, 776 N.W.2d 838. We apply this rule when the circuit court has not had the opportunity to “pass” on the issue. Hopper v. City of Madison, 79 Wis.2d 120, 137, 256 N.W.2d 139 (1977). However, new arguments are permitted on an issue that was properly raised in the circuit court. See State v. Holland Plastics Co., 111 Wis.2d 497, 505, 331 N.W.2d 320 (1983) ().
¶ 11 Further, the general rule against issues being considered for the first time on appeal is merely one of judicial administration. See Segall v. Hurwitz, 114 Wis.2d 471, 489, 339 N.W.2d 333 (Ct.App.1983). Thus, we may choose to address an issue raised for the first time on appeal in the exercise of our discretion, depending on the facts and circumstances of each case, particularly where “compelling circumstances” exist or where there is a reason to do so. Hopper, 79 Wis.2d at 137, 256 N.W.2d 139;see Sears v. State, 94 Wis.2d 128, 140, 287 N.W.2d 785 (1980) (compelling circumstances); Segall, 114 Wis.2d at 489–90, 339 N.W.2d 333 (). One such circumstance is when the issue is solely a question of law that is not dependent on further fact finding to resolve the issue and the parties overlooked applicable law in the circuit court. See Helgeland v. Wis. consin Mun s., 2006 WI App 216, ¶ 9 n. 9, 296 Wis.2d 880, 724 N.W.2d 208;Estate of Hegarty ex rel. Hegarty v. Beauchaine, 2001 WI App 300, ¶ 12, 249 Wis.2d 142, 638 N.W.2d 355.
¶ 12 We conclude Bachinski's reliance on Wis. Stat. § 346.02(7) to support his argument that he could not be guilty of speeding because the sign was covered by a tree branch is nothing more than a variation of the argument he made in the circuit court. See, e.g., State v. Weber, 164 Wis.2d 788, 789–91, 476 N.W.2d 867 (1991) (). Although Bachinski's argument to the circuit court focused on whether the City was obligated under the MUTCD to maintain the sign, he also argued that, irrespective of the MUTCD, it would be unfair to hold motorists responsible if they could not see the sign. Consequently, we will consider the merits of Bachinski's § 346.02(7) argument.
¶ 13 Moreover, the factual record is complete and the application of Wis. Stat. § 346.02(7) is simply a matter of law. See Helgeland, 296 Wis.2d 880, ¶ 9 n. 9, 724 N.W.2d 208. The record reflects the circuit court agreed with Bachinski that the sign was obstructed by tree foliage and also acknowledged, “I see where [Bachinski is] coming from, that it's not fair.” Accordingly, even if Bachinski's argument was raised for the first time on appeal, we exercise our discretion to apply § 346.02(7) to the facts of this case.
¶ 14 Wisconsin Stat. § 346.02(7) provides:
No provision of this chapter for which signs are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official sign is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular sect...
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