City of Sun Prairie v. William D. Davis
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SUPREME COURT OF WISCONSIN Case No.: 97-1651 Complete Title of Case: City of Sun Prairie, Plaintiff-Respondent, v. William D. Davis, Defendant-Appellant-Petitioner. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 217 Wis. 2d 268, 579 N.W.2d 753 (Ct. App. 1998, Published) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: June 18, 1999 March 3, 1999 Circuit Dane Michael N. Nowakowski JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Stephen E. Mays, formerly of Kalal & Associates and now of Thomas, Kelly, Habermehl & Wood, S.C. Madison and oral argument by Stephen E. Mays. For the plaintiff-respondent there was a brief by Richard K. Nordeng, Peter T. Julka, Matthew P. Dregne and Stafford, Rosenbaum, Rieser & Hansen, Madison and oral argument by Richard K. Nordeng. No. 97-1651 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-1651 STATE OF WISCONSIN : IN SUPREME COURT FILED City of Sun Prairie, JUN 18, 1999 Plaintiff-Respondent, Marilyn L. Graves Clerk of Supreme Court Madison, WI v. William D. Davis, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. ¶1 WILLIAM A. BABLITCH, J. The City of Sun Prairie Municipal Court entered a default judgment against petitioner, William D. Davis (Davis), an Illinois resident, for his failure to comply with a municipal court order requiring Davis personally appear at trial on a civil forfeiture action. issue presented authority to is enter whether such the an municipal order. court Because has we hold to The inherent that a municipal court does not have inherent authority to order an out-of-state civil defendant forfeiture decision and to action, remand the personally we appear at the court reverse cause to the a municipal trial of on a appeals court for proceedings on the merits. ¶2 The facts are not in dispute. In March 1996, Davis was arrested and cited by the City of Sun Prairie Police for 1 No. Operating a Motor Intoxicant (OWI) Prohibited Alcohol Vehicle and for While Under Operating Concentration a (PAC), 97-1651 the Influence of an Motor Vehicle with a both in violation of city ordinance 10-1-1 which adopted Wis. Stat. § 346.63(1)(a) and (b) (1993-94).1 Both citations issued to Davis informed him of initial a date for an appearance. The citations also notified Davis that his appearance was mandatory in the City of Sun Prairie Municipal Court which had jurisdiction over this civil forfeiture action. ¶3 March On the date scheduled for Davis initial appearance, 13, 1996, neither Davis nor his counsel were present. However, because Davis attorney had sent the court a letter stating that Davis refused to enter pleas on the two charges, the City of Sun Prairie Municipal Court, the Honorable Frank J. Willkom presiding, entered not guilty pleas on behalf of Davis on both charges. ¶4 About one month after the initial municipal court held a pretrial conference. appearance, the The City of Sun Prairie (City) was represented by a city attorney and Davis counsel appeared personally. on behalf of Davis. Davis did not appear Following the pretrial conference, the municipal court issued a Pretrial Conference Order and Notice of Trial which provided that [t]he defendant must appear at the trial in 1 All references to the Wisconsin Statutes are to the 199394 version unless otherwise noted. 2 No. person. 97-1651 The trial was ultimately scheduled for October 30, 1996. ¶5 On October 22, 1996, Davis counsel sent a letter to the municipal court objecting to the court s order that Davis appear in person. Counsel indicated that he did not intend to present Davis personally at the trial. He also indicated that if the City wanted the defendant present, it could subpoena him. ¶6 On October 28, 1996, the municipal court responded to Davis counsel by issuing an order indicating that Davis would be sanctioned if he failed to scheduled for two days later. possible sanctions including personally attend his trial, The municipal court listed the entry of judgment against the defendant, contempt, money terms, orders limiting or barring the presentation of testimony or introduction of evidence at trial, any combination of these sanctions, or other sanctions as the court might deem appropriate. ¶7 Davis counsel immediately responded to the municipal court s order with present Davis personally point to a another statute letter unless requiring stating the court Davis that or he the personal would City not could appearance. Neither the City nor municipal court responded to this letter. ¶8 case. counsel On October 30, 1996, the municipal court called Davis The City was represented by a city attorney, and Davis appeared personally. on behalf of Davis. Davis did not appear Upon the City s motion, the municipal court entered judgment against Davis as a sanction for what the court found to 3 No. 97-1651 be an intentional and egregious violation of the court s order. ¶9 In its Findings of Fact, Conclusions of Law and Judgment issued on December 27, 1996, the municipal court stated that having the defendant physically present assisted the court in five ways: a. It promotes prompt justice. If a defendant s attorney appears without the defendant, the defendant s attorney is more likely to be unwilling to enter into trial stipulations or meaningful settlement discussions, either because the attorney does not know certain facts known to the defendant or because the attorney cannot obtain the necessary consent from the defendant. If the defendant is present, the defendant s attorney always has the defendant s knowledge of the facts and the defendant s authority immediately available. b. It enhances the search for the truth. During trials, this court often has questions that the court puts directly to the defendant. The court can do that only if the defendant is present. c. It enhances the search for the truth in another way. When the defendant is in court, the court is able to observe the defendant s demeanor, an important consideration for the finder of fact. d. It allows the appropriate disposition of the case. If a defendant is found guilty, it may be appropriate for the court to admonish the defendant. The court can admonish the defendant only if the defendant is in court. e. It discourages abuse of the municipal court. It is the court s experience that sometimes a defendant (i) will not attend the defendant s own municipal court trial, but will appear by an attorney, (ii) will, through the defendant s attorney, cross examine the City s witnesses, apparently for purposes of discovery, (iii) will avoid examination by not appearing in court, and then (iv) will appeal 4 No. 97-1651 an adverse judgment to the circuit court and request a new trial. Use of the municipal court to engage in discovery in preparation for a subsequent trial in the circuit court is an abuse of the municipal court. This abuse is discouraged if the defendant must attend his or her trial in municipal court. Respondent s App. at C3-C4. The municipal court determined that Davis failure to appear made it impossible for the court to proceed in fundamental and essential to the fair and efficient operation of the court. The municipal a way court that it further determined concluded to that be Davis failure to personally appear was egregious conduct and done in bad faith. Accordingly, the municipal court entered judgment against Davis on both charges. ¶10 Davis appealed this decision pursuant to Wis. Stat. § 800.14. the Honorable Michael N. to the circuit court, The Dane County Circuit Court, Nowakowski presiding, municipal court s judgment in its entirety. affirmed the Davis appealed the circuit court order to the court of appeals. ¶11 In a split decision, the court of appeals affirmed the circuit court order. The court of appeals determined that as part of the municipal court s inherent authority to efficiently manage its cases, the municipal court has authority to order the defendant to appear personally and to sanction him for failing to do so. City of Sun Prairie v. Davis, 217 Wis. 2d 268, 277, 282-83, 579 N.W.2d 753 (Ct. App. 1998). by ordering municipal appearance the court of physical shed favoring its the presence cloak of The dissent stated that of neutrality municipality. 5 the Id. defendant, and at gave 285. the the The No. 97-1651 dissent concluded that the municipal court would continue to function in an orderly manner if it could not requiring the physical presence of a defendant. ¶12 Davis petitioned this court for issue orders Id. at 286. review which we granted. The issue is whether a municipal court has inherent authority to order an out-of-state defendant appear at trial on a civil forfeiture action. to personally If the municipal court has such inherent authority we must also determine whether it has inherent authority to enter a default judgment against the defendant for his or her failure to personally appear. The question of judicial authority is a question of law that we review de novo. In Interest of E.C., 130 Wis. 2d 376, 381, 387 N.W.2d 72 (1986) (citing Ball v. District No. 4, Area Board, 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984)). ¶13 An order requiring the defendant to personally appear is, in essence, a subpoena. A subpoena is a command to appear at a certain time and place to give testimony upon a certain matter. Black s Law Dictionary at 1426 (6th ed. 1990). power a of municipal court authorize Wisconsin. See Wis. Stat. § 885.04 (reprinted below).2 no statutory authority the subpoena is is when the defendant there unquestioned to for defendant a municipal is The of a within However, court to subpoena, or order the presence of an out-of-state defendant. 2 Wisconsin Stat. § 885.04 provides: A subpoena to require attendance before a municipal judge may be served anywhere in the state if authorized by the municipal judge, and shall require the attendance of any witness so served. 6 No. 97-1651 If such authority exists it must be found within the court s inherent authority. ¶14 Inherent powers have been frequently discussed by this court. 560, See, e.g., Barland v. Eau Claire County, 216 Wis. 2d 579-83, 575 N.W.2d 691 (1998); Flynn v. Department of Administration, 216 Wis. 2d 521, 548-551, 576 N.W.2d 245 (1998); St. ex rel. Friedrich v. Dane County Cir. Ct., 192 Wis. 2d 1, 16, 531 N.W.2d 32 (1995). granted to the courts In addition to the powers expressly in the constitution, inherent, implied and incidental powers. to describe those powers enable the judiciary to courts These terms are used which must necessarily accomplish its legislatively mandated functions. have be used to constitutionally or Friedrich, 192 Wis. 2d at 16 (citing State v. Holmes, 106 Wis. 2d 31, 44, 315 N.W.2d 703 (1981) (quoting State v. Cannon, 199 Wis. 401, 402, 226 N.W. 385 (1929)). Inherent powers are those that have been conceded to courts because they are courts. Such powers have been conceded because without them they could neither maintain their dignity, transact their business, nor accomplish the purposes of their existence. Jacobson v. Avestruz, 81 Wis. 2d 240, 245, 260 N.W.2d 267 (1977) (quoting State v. Cannon, 196 Wis. 534, 53637, 221 N.W. 603 (1928)). See also Flynn, 216 Wis. 2d at 548; Friedrich, 192 Wis. 2d at 16-17. ¶15 A court s inherent authority may fall within its exclusive inherent authority or within inherent authority shared with the legislative or executive branches. If a specific function falls within the court s exclusive inherent authority, 7 No. neither the legislature nor the executive 97-1651 branches constitutionally exercise authority within that area. may Flynn, 216 Wis. 2d at 546 (citing In Matter of Complaint Against Grady, 118 Wis. 2d 762, 776, 348 N.W.2d 559 (1984)). Although the court may allow another branch to exercise authority in an area of exclusive judiciary inherent authority, it does so merely as a matter of comity and courtesy rather than as an acknowledgment of power. Flynn, 216 Wis. 2d at 546 (citing Friedrich, 192 Wis. 2d at 15). The judiciary s exclusive inherent authority is State v. Braunsdorf, 98 immune from legislative abrogation. Wis. 2d 569, 580, 297 N.W.2d 808 (1980). ¶16 In contrast, if a function falls within constitutional powers of the judiciary and another branch, it is within the judiciary s shared powers. Flynn, 216 Wis. 2d at 547. Another branch may exercise power in an area of shared powers but only if it does not unduly burden or substantially interfere with the judiciary. ¶17 Id. (citing Friedrich, 192 Wis. 2d at 15). There are generally three areas in which courts have exercised inherent authority. See Flynn, 216 Wis. 2d at 550-51. One area of inherent authority is the internal operations of the court. any Courts exercise inherent authority to guard against action materially system. that impair would the unreasonably efficacy of curtail the the courts powers or or judicial Id. at 550 (referring to Holmes, 106 Wis. 2d at 44; Barland, 216 Wis. 2d at 587-88; In re Court Room, 148 Wis. 109, 134 N.W. 490 (1912)). For example in Barland, this court determined that a circuit court has inherent authority to retain 8 No. its judicial assistant. 97-1651 Barland, 216 Wis. 2d at 587-88. The Barland court relied on a much earlier case, In re Janitor, in which this court also held that a court has inherent authority to retain its janitor. Id. at 591-92 Janitor, 35 Wis. 410, 421 (1874)). operations facilities. under a court s (referring to In re Another area of internal inherent authority is a court s In In re Court Room, we determined that a circuit court had inherent authority to refuse facilities proposed by the county because such facilities were inadequate for the court to carry on its business. ¶18 Courts also In re Court Room, 148 Wis. at 119-20. have inherent members of the bench and bar. authority to regulate For example, this court can require disclosure of judges assets. In re Hon. Charles E. Kading, 70 Wis. 2d 508, 518, 235 N.W.2d 409 (1975). The court also has inherent authority to determine whether attorneys fees are reasonable and to refuse to enforce those that are not. Herro, McAndrews & Porter v. Gerhardt, 62 Wis. 2d 179, 183, 214 N.W.2d 401 (1974). ¶19 The final area in which the court exercises inherent authority is ensuring that the court functions efficiently and effectively to provide the fair administration of justice. Flynn, 216 Wis. 2d at 550 (citing Holmes, 106 Wis. 2d at 44; Jacobson, 81 Wis. 2d at 247). See also Latham v. Casey & King Corp., 23 Wis. 2d 311, 314, 127 N.W.2d 225 (1964). cited several cases in which the courts exercised authority to dispose of causes on their dockets. 9 The parties inherent For example, a No. municipal court has inherent authority constitutional issues raised before it. to dispose have inherent authority to do of Milwaukee v. Wroten, 160 Wis. 2d 207, 220-21, 223, 466 N.W.2d 861 (1991). also 97-1651 the following: Courts appoint counsel for indigent parties, Joni B. v. State, 202 Wis. 2d 1, 9, 549 N.W.2d 411 (1996); determine compensation for court- appointed attorneys, Friedrich, 192 Wis. 2d at 19; vacate a void judgment because the court had no authority to enter the judgment in the first place, City of Kenosha v. Jensen, 184 Wis. 2d 91, 98, 516 N.W.2d 4 (1994); assess the costs to the parties of impaneling a jury, Jacobson, 81 Wis. 2d at 247; order dismissal of a complaint if the attorney fails to appear for a pretrial conference and the attorney was warned of the possible sanction of dismissal, Latham, 23 Wis. 2d at 315-16, 317; and order parties to exchange names of lay witnesses, Carlson Heating, Inc. v. Onchuck, 104 Wis. 2d 175, 180, 311 N.W.2d 673 (Ct. App. 1981). In each of these case, the court determined that the function in question related to the existence of the court and the orderly and efficient exercise of its jurisdiction. ¶20 court There are, however, notable situations in which this determined that courts do regarding a particular function. not have inherent authority Courts do not have inherent authority to expunge juvenile police records which are under the authority of a police chief. at 387. In Interest of E.C., 130 Wis. 2d Courts also do not have inherent authority to dismiss a criminal case with prejudice prior to attachment of jeopardy on 10 No. nonconstitutional grounds. 97-1651 Braunsdorf, 98 Wis. 2d at 585. In both cases, this court determined that the functions were not related to the existence of the court nor to the orderly and efficient functioning of the court. In Interest of E.C., 130 Wis. 2d at 387; Braunsdorf, 98 Wis. 2d at 585. the Braunsdorf court, after reviewing many Specifically, cases from other jurisdictions which recognized a court s inherent authority to dismiss a criminal case with prejudice, determined that in most of these cases, the recognition of inherent authority arose from a procedural rule or statute, not present in Wisconsin, which authorized dismissals. ¶21 Braunsdorf, 98 Wis. 2d at 585. If a municipal court has inherent authority to order an out-of-state defendant to personally appear, such authority would fall within the third area of inherent authorityensuring that the court operates efficiently and effectively to provide the fair administration of justice. See Flynn, 216 Wis. 2d at 550. In other words, for the City of Sun Prairie to prevail, it must establish that the order here was necessary for the efficient and orderly functioning of the court or to maintain the court s dignity, transact purpose of its existence. its business or achieve the See Jacobson, 81 Wis. 2d at 247. See also Latham, 23 Wis. 2d at 314; State v. Cannon, 196 Wis. at 536-37. ¶22 The reasons articulated by the municipal court for ordering the defendant s presence are in essence the arguments made by the City to support its conclusion that the municipal 11 No. 97-1651 court s order was related to the existence of the court and to the orderly and efficient exercise of its jurisdiction. ¶23 In its Finding of Facts, Conclusions of Law and Judgment, in which the municipal court entered judgment in favor of the City, the court gave five reasons defendant to personally appear at trial. court stated that the defendant s for ordering the First, the municipal physical presence would promote[] prompt justice because he knows the facts and can enter into trial discussions. stipulations Second, the or meaningful defendant s settlement physical presence enhances the search for the truth because the court can ask questions directly of the defendant. Third, the defendant s personal appearance also enhances the search for the truth in that the court can observe the defendant s demeanor. the defendant s disposition physical of the case presence because allows the court defendant if it finds the defendant guilty. demanded the defendant s physical that requiring the can defendant to appropriate admonish the Finally, the court presence discourages abuse of the municipal court. asserted the Fourth, because it The municipal court personally appear decreases the chance that the municipal court would be used by Davis counsel for discovery purposes in preparation for a trial in the circuit court. requiring the In its brief, the City explained that defendant to personally appear avoids the situation in which defendant s counsel cross-examines the City s witnesses, evades his or her own examination, and then appeals 12 No. 97-1651 an adverse judgment to the circuit court as allowed by Wis. Stat. § 800.14. ¶24 While each of the reasons given by the municipal court is a legitimate concern, neither the municipal court nor the City have persuaded us that these reasons are related to the existence of the court and to the orderly and efficient exercise of its jurisdiction . . . . ¶25 Jacobson, 81 Wis. 2d at 247. As counsel for Davis pointed out, he appeared at the municipal court on behalf of his client, not only prepared with evidence to defend his client, but also with authority to speak on his behalf. court s first In other words, in answer to the municipal reason for ordering defendant s presence, to promote prompt justice, Davis counsel had authority to enter stipulations or settlement discussions on behalf of his client. He came limits. prepared with knowledge of his client s wishes and The physical presence of the defendant was not needed to promote prompt justice. His presence was not needed for the existence of the court or the orderly and efficient exercise of its jurisdiction. ¶26 Regarding the court s reason that the defendant s presence would enhance the search for the truth, we agree that once a witness is available, a court has authority to question that witness. Schultz v. State, 82 Wis. 2d 737, 741, 264 N.W.2d 245 (1978) (quoting State v. Asfoor, 75 Wis. 2d 411, 437, 249 N.W.2d 529 (1976)). the defendant is We do not agree, however, that questioning necessary for the orderly and efficient functioning of the court or to maintain its dignity, transact 13 No. its business or achieve the purpose of its existence. 97-1651 As noted above, Davis counsel appeared at the municipal court, prepared to present evidence and to defend his client. have been resolved without questioning the defendant. defendant was not the The case could municipal court directly Posing questions directly to the necessary to the orderly and efficient functioning of the court. ¶27 Regarding the municipal court s third and fourth reasons for ordering the presence of the defendant, we agree that a court observes a defendant s demeanor while he or she is in the courtroom, and that a court may admonish a defendant who is found guilty. However, neither the municipal court in its Findings of Fact, Conclusions of Law and Judgment, nor the City in its brief and argument before this court, provided any reason why observing demeanor or admonishing a defendant found to be guilty is related to the existence of the court or orderly and efficient exercise of its jurisdiction. simply no case constitution to law, statutory show that authority, without or observing the There is basis a to in the defendant s demeanor or admonishing a defendant found guilty, a court will cease to exist or it will not be able to exercise its jurisdiction in an orderly and efficient manner. ¶28 City The fifth and final reason the municipal court and the offer discourage municipal for abuse courts requiring of are the municipal concerned defendant s courts. that is understand proceedings could be misused as discovery proceedings. 14 We presence before to that them To appeal an adverse No. 97-1651 decision by a municipal court, the legislature provided that a party who loses has the right to a de novo review before a circuit court. Wis. Stat. § 800.14. appellant can request a jury trial. alleges that because of the However, only § 800.14(4). statutory the The City structure regarding appeals to the circuit court, defendants have incentive to have a hearing in municipal court for discovery purposes but then to lose the trial so they can appeal to the circuit court and request a jury trial, armed with the discovery made during the municipal trial. The City alleges that that was Davis counsel s intent by refusing to present Davis in person at the municipal court trial. The City argues that ordering the defendant s physical presence would alleviate such abuse of the municipal court. ¶29 We However, municipal constitution, legislature recognize are has that the courts, creatures made City raises although of certain the valid authorized by the And the choices and legislature.3 public policy concerns. established the process to appeal a municipal court decision. 3 Wisconsin Const. Art. VII, § 2 provides that [t]he judicial power of this state shall be vested in a unified court system consisting of one supreme court, a court of appeals, a circuit court, such trial courts . . . and a municipal court if authorized by the legislature under section 14. Wisconsin Const. Art. VII, § 14 enables the legislature to authorize each city, village and town to establish a municipal court. All municipal courts shall have uniform jurisdiction limited to actions and proceedings arising under ordinances of the municipality in which established. Wis. Const. Art. VII, § 14. 15 No. 97-1651 It makes no difference whether we agree or disagree with the policy choice made by the legislature. It is for the legislature to make policy choices, ours to judge them based not on our preference but on legal principles and constitutional authority. ¶30 Flynn, 216 Wis. 2d at 529. As legislature allowed created by the authority Wisconsin for Constitution, municipalities to the adopt an ordinance or bylaw providing for the election of municipal court judges and the § 755.01(1). operation A of municipal municipal court so courts. created Wis. has Stat. exclusive jurisdiction over an action in which a municipality seeks to impose forfeitures for violations of municipal ordinances of the municipality . . . . jurisdiction over § 755.045(1). civil forfeiture ordinance violations, the courts issue warrants to civil Along with this exclusive actions to municipal authorized legislature for municipal enforce issues under the jurisdiction of the municipal court, § 755.045(2), and to order payment of restitution for violations of certain ordinances, § 755.045(3). ¶31 Because municipal courts exist only as created by the legislature, they are creatures of the legislature. Although a court, including a municipal court, has the power to exercise all of its jurisdiction, constitutional it must powers exercise once those it invokes constitutional within the framework of that conferred jurisdiction. 160 Wis. 2d at 222. In the case of municipal its powers Wroten, courts, the framework of that conferred jurisdiction has been limited by 16 No. the legislature. Municipal courts, as 97-1651 creatures of the legislature, are bound by certain policy choices imposed by the legislature as long as such policy choices are constitutional. ¶32 the appeal § 800.14. the The legislature made the policy choice to establish City process in the manner provided in Wis. Stat. Barring some constitutional infirmity which neither argued nor that policy choice must stand. we can discern, the legislature s As stated above, the court s role is not to judge a statutory scheme based on our preferences but rather, persuaded based on constitutional by either the municipal principles. court s We are not nor the reasoning City s argument that the legislative policy choice expressed in § 800.14 for an appeal of a municipal court decision to the circuit court is reason to invoke judicial inherent authority to order the physical presence of an out-of-state defendant. ¶33 have The City also argues that the municipal court must inherent authority to order a defendant to personally appear at trial because subpoenas are ineffective in this case because Davis is an Illinois resident. The City asserts that the city attorney does not have authority to issue subpoenas in municipal court, and the municipal court has authority to issue subpoenas only in Wisconsin. ¶34 In addition to See Wis. Stat. § 885.04. the powers conferred upon municipal courts in Wis. Stat. ch. 755, the legislature granted municipal judges statutory power to authorize the subpoena of a person within Wisconsin. municipal judge A subpoena to require attendance before a may be served 17 anywhere in the state if No. authorized by the municipal judge, attendance of any witness so served. and shall 97-1651 require the Wis. Stat. § 885.04. The municipal judge does not, however, have statutory authority to authorize the subpoena of an out-of-state witness. ¶35 As noted above, municipal courts are creatures of the legislature and are bound by the policy choices made by the legislature as long as they are constitutional. the statutory scheme regarding municipal Our review of courts is that the legislature made a policy choice to allow municipal courts to authorize the silence, has subpoena of § 885.04. subpoena not of allowed persons persons municipal outside of within Wisconsin, courts Wisconsin. to but authorize See Wis. by the Stat. Because neither the municipal court in its written judgment, nor the City in its brief and argument to this court, have convinced us that ordering the defendant s presence in the court is necessary to the orderly and efficient exercise of its jurisdiction, we uphold the legislative policy choice expressed in § 885.04. policy The choice legislature that has municipal effectively courts, expressed authorized by its the constitution but creatures of the legislature, may authorize the subpoena of a person within the State of Wisconsin but not without the state. ¶36 court The has City supports inherent its authority argument to that order the the municipal defendant to personally appear by analogizing this case to cases in which this court has recognized an inherent power. For example, the City cited Joni B. for its statement that the court has inherent 18 No. 97-1651 authority to appoint counsel in furtherance of [a] court s need for the orderly and fair presentation of a case. Wis. 2d at 11. The litigants in Joni B. Joni B., 202 challenged the constitutionality of 1995 Wis. Act 27, § 2442v, which amended Wis. Stat. § 48.23(3) to prohibit a court from appointing counsel in a Children in Need of Protective Services (CHIPS) action for anyone other than the child. Id. at 5. This court relied on the inherent authority of the judiciary to conclude that the statute was unconstitutional. parent obviously integrity of legislatively needs the assistance CHIPS denied the of proceeding, right to Id. at 11. counsel the appoint When a to ensure the court cannot be counsel, thereby placing the individual judge in the untenable position of having to essentially serve as counsel for that parent. ¶37 Id. In Joni B., the amended statute forbid the court from appointing counsel for anyone other than the child. Under the statute, an indigent parent would be forced to represent him- or herself. He or she would have no choice and the court would likely not be afforded the orderly and fair presentation of the case. See id. In contrast, in the present case, defense counsel appeared on behalf of his client, prepared to present evidence and defend him. Unlike the situation in Joni B., the municipal court in this case did not need the physical presence of the defendant to achieve the orderly and fair presentation of the case. ¶38 Another example offered by the City is Latham in which this court held that a county court has inherent authority to 19 No. 97-1651 dismiss an action on its merits as a sanction for an attorney s failure to obey a court order to attend a pre-trial conference. Latham, 23 Wis. 2d at 316. county court s attorney nor potential dismissal his sanction The court nonetheless reversed the of the case client had notice for failing to because that comply neither dismissal with requiring attendance at the pre-trial conference. the was the Id. a order In the present case, Davis and his counsel knew that default judgment was a possible sanction for failing to comply with the municipal court s order. We find that Latham is inapplicable. ¶39 The county court in Latham had issued an order pursuant to a county court rule that required attorneys to attend pre-trial conferences. 313 n.1. not in The authority of the court to issue such an order was question. The county court rule. power Id. at of a court court derived its authority from the The only issue before the court was the to dismiss an action on its merits as a sanction for failure of an attorney to comply with a valid court order, an issue we would reach in this case only if we found the municipal court has the inherent authority to issue the order. Id. at 314. ¶40 Aside from attempts to analogize this case, the City has cited to no case in this state nor any other jurisdiction in which a court has recognized the judiciary s power to order a defendant to personally appear authority, and we have found none. based solely on inherent Cf. Braunsdorf, 98 Wis. 2d at 580-84 (although this court was not persuaded, the appellant 20 No. 97-1651 cited cases in several other jurisdictions in which the courts recognized inherent authority to dismiss a criminal case with prejudice). ¶41 defendant In fact, this who failed court to has previously personally appear in stated a civil that a action nonetheless appeared since he was entitled to and did appear by his attorney. Sherman v. Heiser, 85 Wis. 2d 246, 255, 270 N.W.2d 397 (1978) (citations omitted). The defendant in Sherman appeared by the fact that his counsel appeared on his behalf. Id. at 254. The most generous interpretation that could be given to Sherman s action [failure to personally appear] is that he was willing to let his attorney try the case without him. This he had a right to do. ¶42 Id. at 256. For all of these reasons stated above, we determine that the existence of the municipal court and the orderly and efficient exercise of its jurisdiction is not dependent upon the personal presence of the defendant. Accordingly, we hold that a municipal court does not have inherent authority to order an out-of-state defendant to personally appear at trial in a civil forfeiture action. ¶43 Finally, Davis argues that because the municipal court erroneously entered default judgment against him, and the City failed to prove its case when his proceed, he is entitled to judgment. counsel was We disagree. prepared to As we have done several times upon concluding that a default judgment was entered in error, we determine that the default judgment entered by the municipal court and affirmed by the circuit court and 21 No. 97-1651 court of appeals is vacated and the cause is remanded to the municipal court for proceedings on the merits. See, e.g., Oostburg Bank v. United Savings, 130 Wis. 2d 4, 10, 17, 386 N.W.2d 53 (1986) (affirming a court of appeals decision which reversed the circuit court s judgment and vacated the default judgment); Reynolds v. Taylor, 60 Wis. 2d 178, 179, 208 N.W.2d 305 (1973) (reversing default judgment and remanding cause). By the Court. The decision of the court of appeals reversed, and the cause is remanded to the municipal court. 22 is 1
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