State ex rel. Prentice v. County Court, Milwaukee County

• Decision Date: 28 October 1975
• Docket Number: No. 159,159
• Parties: STATE of Wisconsin ex rel. Jeanne P. PRENTICE, Appellant, v. COUNTY COURT, MILWAUKEE COUNTY, Respondent. (1974).
• Court: Wisconsin Supreme Court

Page 283

234 N.W.2d 283

70 Wis.2d 230

STATE of Wisconsin ex rel. Jeanne P. PRENTICE, Appellant, v. COUNTY COURT, MILWAUKEE COUNTY, Respondent.

No. 159 (1974).

Supreme Court of Wisconsin.

Oct. 28, 1975.

Ray T. McCann, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Albert Harriman, Asst. Atty. Gen., Madison, for respondent.

WILKIE, Chief Justice.

In August of 1971 appellant Jeanne Prentice was brought before the Milwaukee county court on a uniform traffic complaint, executed by one of the arresting policemen, alleging she had violated sec. 101--196 of the Milwaukee Code of Ordinances by having 'exceeded speed in posted zone.' Jeanne Prentice filed a demurrer, a motion to quash, and demanded a jury trial although she filed her demand with payment of fee one day after the twenty-day time limit. The county court denied the demurrer, the motion to quash and set the matter down for a trial without a jury. Thereupon, Jeanne Prentice went to the circuit court for a with of prohibition. The circuit court, after issuing an alternative writ of prohibition, ultimately quashed the alternative writ and this appeal is from that action. A writ of consultation was issued on May 3, 1974, authorizing the county court to proceed with the trial of the action.

The broad issue before this court is whether the circuit court erred in denying the writ of prohibition.

Propriety of Writ of Prohibition.

Petitioner asserts that the county court was threatening to act outside of or in excess of its jurisdiction because (1) no action could be legally commenced except by an attorney for the city of Milwaukee, (2) petitioner had been deprived of her right to a jury, and (3) the city could not prosecute this action because prosecutions for ordinance violations are really criminal prosecutions. On the basis of these assertions she claims that prohibition is a proper remedy.

However, before prohibition will lie, certain well-settled prerequisites must be satisfied. First of all, it must appear that an appeal is not an adequate remedy. ¹ Secondly, it must to shown that extraordinary hardship will result unless a writ of prohibition is available. ² In regard to both of these prerequisites, the petitioner seeking the intervention of the supervisory court has the burden of alleging sufficient facts to show both the inadequacy of appeal and extraordinary hardship. ³

In this case petitioner is faced with defending a civil forfeiture action based upon a citation for speeding. Her petition contains no factual allegations regarding why an appeal is inadequate in this situation, or why she will suffer hardship unless a writ of prohibition issues. It contains only the general conclusionary statement that 'your petitioner has no adequate remedy by appeal or otherwise.' It must be conceded that a court appearance for a speeding violation is a regular, routine matter of relatively minor significance, both in terms of possible sanctions and time involved. Absent extraordinary circumstances, which do not appear in the record of this case, it cannot be said that proceeding to trial on this matter would result in grave hardship or that appeal is not an adequate method of correcting whatever errors might be involved. We therefore conclude that the circuit court properly quashed the alternative writ in this case because of failure to meet the necessary preconditions for this extraordinary remedy.

There is an additional reason why prohibition does not lie in this case. In Petition of Pierce-Arrow Motor Car Co. ⁴ this court stated:

'. . . (In order for prohibition to lie) the duty of the court below must be plain; its refusal to proceed within the line of such duty, or, on the other hand, its intent to proceed in violation of such duty must be clear . . ..'

This requirement that the duty of the lower court must be plain and clear has been cited approvingly and followed in recent cases affirming a circuit court's decision not to issue a writ of prohibition. ⁵ In the case at hand it can hardly be said that the county court had a clear and plain duty to dismiss the case or to grant petitioner a jury trial. On the contrary, in denying this relief the county court was following the clear and plain direction of Wisconsin law. This is merely another way of saying that what petitioner really seeks are some very basic changes in Wisconsin law, which would require the overruling of several cases, and a finding that several statutes are unconstitutional. But the way to seek this end is by the ordinary course of appeal, and not by writ of prohibition, which requires that the deviation by the lower court be from clear and plain principles of law.

Jurisdiction of the County Court.

Petitioner argues that the county court had no jurisdiction to proceed in her case because the action was improperly commenced when a Milwaukee police officer, rether than a Milwaukee city attorney, filed with the court the uniform traffic citation for speeding. In support of this argument she cites sec. 299.06(2)(a), Stats., which states:

'An individual may commence an action either in his own proper person and in his own behalf, or by an attorney regularly authorized to practice in the circuit courts of this state, but not otherwise. Actions on behalf of any other party shall be commenced only by attorneys regularly authorized to practice in the circuit of this state.'

Since the city of Milwaukee is not an individual, petitioner concludes that the action against her had to be commenced by an attorney. She also argues that this requirement is sound as a matter of policy because p police officer is merely a witness to a traffic violation, and a prosecuting attorney should in all cases exercise independent discretion in regard to whether an action should be commenced.

However, sec. 299.01(2), Stats., provides that ch. 299 applies to civil forfeiture actions 'except as a different procedure is prescribed' in chapters 66, 288, and 345. The alleged violation in this case occurred on August 11, 1971, and thus the references of the attorney general to sections of the uniform traffic procedure ⁶ are not relevant to this case, since this procedure was not effective until October 1, 1972. Nevertheless, certain statutes were in effect in 1971 which overrode the provisions of ch. 299. Sec. 345.11(5), effective in 1971, provided as follows:

'Notwithstanding any other provision of the statutes, the use of the uniform traffic citation and complaint promulgated under sub. (4) by any peace officer in connection with the enforcement of any state traffic laws or any local traffic ordinances in strict conformity with the state traffic laws, shall be deemed adequate process to give the appropriate court jurisdiction over the subject matter of the offense upon the filing with such court of the uniform traffic complaint.'

But the phrase 'adequate process to give the appropriate court jurisdiction over the subject matter of the offense' was erroneous, since subject matter jurisdiction is not conferred by service and filing of process, but by constitution and statute, which grant power to various courts to hear various kinds of actions. The apparent aim of sec. 345.11(5) was to provide that issuance of a uniform traffic citation to an individual, and filing of that citation with the appropriate court, was sufficient process to invoke the jurisdiction of the court over the person of the defendant, as is done in the case of service and filing of a summons. This descrepancy was rectified by Laws of 1973, ch. 218, sec. 18, which amends sec. 345.11(5) as follows:

'Notwithstanding any other provision of the statutes, the use of the uniform traffic citation and complaint promulgated under sub. (4) by may peace officer in connection with the enforcement of any state traffic laws or any local traffic ordinances in strict conformity with the state traffic laws, shall be deemed adequate process to give the appropriate court jurisdiction over the person upon the filing with such court of the uniform traffic complaint.'

We construe the provisions of sec. 345.11(5), Stats., to mean that a police officer may file a uniform traffic citation and complaint with the appropriate court, and that such filing, after issuance of the citation to the motorist, is sufficient process to confer upon the court personal jurisdiction over the defendant. Even if sec. 345.11(5) were construed to mean that a prosecuting attorney, and not a police officer, is the proper party to file the citation and complaint, petitioner would still not prevail. In Drugsvold v. Small Claims Court, ⁷ this court held that a small claims suit improperly commenced by a non-attorney was not void, as long as the necessary acts were accomplished in fact. At Most the role of the non-attorney constituted unauthorized practice of law. It did not, however, deprive the court of jurisdiction, as long as the complaint was properly made and the summons properly issued. In this case it is undisputed that a uniform traffic citation and complaint were issued and thereafter filed with the appropriate court. These are the steps which the statute requires in order to commence such an action. Thus, even if one assumes arguendo that a nonattorney was not the appropriate initiating party, this did not have the effect of depriving the county court of jurisdiction.

There is another reason why petitioner cannot claim a lack of personal jurisdiction in this case. Petitioner was arrested for a traffic violation, and shortly thereafter brought before the county court. While the more usual practice is to release a motorist after a citation for a traffic violation, arrest without a warrant and immediate arraignment were not prohibited under the former statutes. ⁸ Petitioner apparently concedes that she entered a plea of not guilty during this appearance, although the record an appeal does not indicate anything in this regard. Appearance before a court and entry of a...