Strook v. Kedinger

Decision Date18 February 2009
Docket NumberNo. 2007AP2898.,2007AP2898.
Citation2009 WI App 31,766 N.W.2d 219
PartiesTerry K. STROOK, Plaintiff-Respondent, v. Dean KEDINGER, Defendant-Appellant.
CourtWisconsin Court of Appeals

Appeal from a judgment and an order of the circuit court for Fond du Lac County: Richard J. Nuss and Karen L. Seifert, Judges.1 Reversed and cause remanded with directions.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeremy Vanderloop of Storck & Madden of Mayville.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peter John Hoeper of Hoeper Law Offices of Waupun.

Before BROWN, C.J., ANDERSON, P.J., and NEUBAUER, J.

¶ 1 BROWN, C.J

This is a "chicken or the egg" case. More precisely, when a person who must appear in court at a substantive proceeding, seeks an accommodation because of physical disability, and self-identifies in as reasonable a time as possible before the hearing, should circuit courts who believe they need more information before deciding whether and what accommodation to give, make a factual determination before the date of the substantive court hearing, either by informal means or by a formal hearing with notice to the person alleging a disability? Or, may the circuit courts maintain silence about the accommodation request and decide the accommodation request at the substantive hearing? We hold that, as a matter of common sense fairness and due process, the answer is the former. We reverse because the circuit court in this case used the latter and that latter process prejudicially affected the disabled person's right to a fair hearing. We also reverse for other, correlative reasons.

¶ 2 Dean Kedinger alleges that he is deaf. He may even be Deaf (with a capital D). More on that later. This case is mainly about the facts and circumstances surrounding his attempt to have a sign language interpreter at a motion hearing. An interpreter for this hearing was important because the subject matter was substantive: Kedinger's motion to dismiss Terry Strook's complaint and Strook's motion to strike Kedinger's cross-claims and counterclaims were on the line. Summarily, what happened was that when Kedinger was informed that he would not be afforded an interpreter at the hearing, he refused to appear. We note that the motion hearing was before the Hon. Richard J. Nuss. Judge Nuss struck Kedinger's cross-claims and counterclaims. The Hon. Karen L. Seifert presided at the resultant trial to the court and a sign language interpreter was afforded Kedinger at that trial. The trial is not our concern. Rather, because Judge Nuss' pretrial order prohibited Kedinger from prosecuting his cross-claims and counterclaims, Kedinger was not able to present his claims at trial. The motion hearing is where he claims the prejudice lies and, therefore, the trial before Judge Seifert is not material to this appeal. Thus, when we use the term "circuit court," we will be referring to Judge Nuss.

BACKGROUND

¶ 3 To completely understand the issue at bar, it is important to set forth the somewhat lengthy history leading up to this appeal. The basic underlying facts leading to the dispute between the parties are simple enough. Strook and Kedinger are neighbors. Kedinger downed trees on their shared property line, some of which were on Strook's side. Strook claimed that Kedinger was trespassing, but Kedinger claimed that he had consent. Kedinger also claimed that Strook had trespassed on and damaged his property. It is not these facts which need to be parsed out, but rather the procedural history that we need to relate in admittedly great detail.

¶ 4 Strook filed his complaint for trespassing on March 2, 2006. On April 21, Kedinger, acting pro se, responded with answers, cross-claims and counterclaims and, by a separate document, also moved to dismiss the complaint. On May 5, Strook replied and also moved to strike. On May 12, Kedinger filed a jury demand with a petition for waiver of filing and service fees. Attached was an affidavit of indigency stating that Kedinger currently received food stamps, along with proof that food stamps were issued to him from February 2005 to January 2006. The same day, he also filed a letter from his doctor that stated:

[Kedinger] is deaf and ... requires a sign language interpreter for effective communication. The exception would be written communication which is not always optimally effective in complex matters. It is, of course, slower and more cumbersome. ...

In particular, for legal proceedings, I would encourage you to provide a sign language interpreter for him.

For the next month, nothing happened in the case.

¶ 5 Then, over a month later, on Friday, June 16, the circuit court mailed the parties a notice that it had scheduled a motion hearing for June 22 on the motions to dismiss and motions to strike. It stated that the court would not adjourn the matter "except upon formal motion for good cause shown or with the specific approval of the court upon stipulation by all parties." The notice also provided a phone number for those with disabilities. It should be noted, as we will later detail by footnote, that the notice period was abridged, shorter than generally provided for by the statutes. However, the circuit court was shortly thereafter taking medical leave and wanted this motion heard before its extended absence. While this shortened notice is allowed by statute and is within the discretion of the circuit court, we note that it may well have contributed to the problem that is now before this court on appeal.

¶ 6 On Tuesday, June 20, Kedinger called the court via TTY.2 He learned that the court would not provide an interpreter at the motion hearing, so he told the court staffer who took the call that he would not attend the hearing. The next day, he filed a formal motion for a sign language interpreter, again asserting that he was deaf. In it, he informed the court that he would not be attending due to not having an interpreter as requested. We quote this motion in pertinent part, in a footnote, because it helps explain the circuit court's reaction to this motion as part of its ultimate decision in this case. Suffice it to say, certain passages in the motion show a lack of respect for the justice system in general and the circuit court in particular. Venom, arrogance and ad hominem attacks are not to be condoned, whether they are by a member of the practicing bar or a person acting pro se.3 ¶ 7 The circuit court held the hearing as scheduled. Kedinger was absent, like he said he would be, but the court still discussed the merits of his motion to dismiss and claims, along with his indigency and interpreter petitions. The court struck his counter and cross claims, dismissed his motion, denied his petition for waiver of jury fees due to insufficient information, and held that the interpreter motion was untimely and would place an undue burden on the county. This is what the court said, in pertinent part:

First ... the mere fact that somebody has a disability, regardless of what it might be, does not trump that person's obligation to make their court appearance and certainly be heard on the subject. And to just summarily, unilaterally not show up and tell the Court this is what it's going to do and this is the way you're going to do it, this Court takes particular affront to. It is not for any litigant to dictate to Court how, what, when, where and why, and I think that is what Mr. Kedinger has now chosen to do.

So this Court had every reason to engage in some dialog with him this afternoon as to his alleged deficiency of hearing, because this court takes particular exception to his ongoing position that he ... fails to communicate, he cannot communicate with anyone. The court certainly senses, based upon conversations that it had with the court staff up here, and others, that Mr. Kedinger for all practical purposes, picks and chooses his deficit, and how [he] uses it, and how he employs it, and when he wants to use it, and when he wants to employ it. That there are times that he can engage in a meaningful conversation with an individual. But when it gets down to something that requires judicial intervention, then all of the sudden the magnitude of his deficiency rises.

There is no ... way that this Court would be in a position to responsibly assess Mr. Kedinger's deficiency unless he in fact was in court so this Court can certainly observe him, query him, permit him to be heard and do the things that are necessary to determine whether or not there is some legitimacy in this.

The court received Exhibit 1 [the Doctor's letter] and [it] certainly does not deny [that] this Court [can] engage in some written dialog with Mr. Kedinger as to some of these issue[s], and I intended to probably do that. But Mr. Kedinger is not here. And so the doctor himself indicates that that is—while it's cumbersome, it certainly would be permissible.

And so the Court would certainly make a definitive finding that Mr. Kedinger's rights would not be just summarily compromised by this motion hearing moving ahead this afternoon while he may have some deficiency and there may not be an interpreter present.

¶ 8 The circuit court then discussed a sheriff's department incident report where a backhoe operator informed a deputy that he was able to "easily" communicate with Kedinger. The circuit court apparently accepted this as proof that Kedinger asserts a disability only when it suits his purpose. The court then went on to state:

The Court wants to emphasize that Mr. Kedinger has repeatedly exasperated the resources of this court system in an attempt to demonstrate and show that he has some compelling disability that prevents his inability to communicate, short of certified deaf sign language interpreting. This Court takes particular exception to that if it doesn't even have an opportunity to hear and to see....

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