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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                    This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
April 20, 2010
A party may file with the Supreme Court a
David R. Schanker                                                                                                                                       petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                               Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                        and RULE 809.62.
                                                                                                                                                        Cir. Ct. No.   2006CV3047
Appeal No.                                                                         2009AP839
STATE OF WISCONSIN                                                                                                                                      IN COURT OF APPEALS
                                                                                                                                                        DISTRICT I
ROBERT C. BRAUN,
PLAINTIFF-APPELLANT,
V.
CITY OF WAUWATOSA,
JAMES MASTROCOLA
AND JENNIFER OLSON,
DEFENDANTS-RESPONDENTS.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:  JOHN J. DIMOTTO, Judge.   Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1                                                                                 CURLEY, P.J.      Robert C. Braun, pro se, appeals from a judgment
dismissing Braun’s claims against the City of Wauwatosa and Officers James
Mastrocola and Jennifer Olson.   Braun filed suit against Wauwatosa and Officers
Mastrocola and Olson seeking a declaratory judgment interpreting WIS.  STAT.




No. 2009AP839
§ 943.13                                                                                  (2007-08)1  and  for  personal  injuries  stemming  from  his  arrest  on
December 30, 2005.   Braun contends the circuit court erred in dismissing his claim
for declaratory judgment and asks this court to provide such judgment.   Braun also
contends the circuit court erred in precluding from trial evidence relating to an
order from Mayfair Mall banning him from its premises.   We affirm.
I.   BACKGROUND.
¶2                                                                                        Braun  engaged  in  a  public  protest  at  the  Mayfair  Mall  in
Wauwatosa.   By a letter dated December 16, 2005, Stephan W. Smith, general
manager for Mayfair Properties, informed Braun that he was not permitted on the
property of Mayfair Properties for a period of six months commencing December
17, 2005.   On December 30, 2005, Braun drove onto the Mayfair Mall parking lot
and parked his car.   Mayfair Mall officials contacted the Wauwatosa police and
reported that Braun was in violation of the ban order.   Officers Mastrocola and
Olson responded to Mayfair Mall’s trespass complaint.
¶3                                                                                        When  they  arrived,  Officers  Mastrocola  and  Olson  approached
Braun near the entrance to the Mayfair Mall and identified themselves as law
enforcement officers.    Officer Olson testified that she and Officer Mastrocola
advised Braun “a number of times” that they “wanted to talk to him,” but that “he
just didn’t want to talk to [them].”   She testified that:                                “[Braun] ignored us.   He
walked away from us.   He yelled some things like, you know, go away.   I don’t
want to talk to you.   Things like that.”   Officer Olson further testified that at one
point during her interaction with Braun, she instructed Braun to put his hands
1  All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.
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No. 2009AP839
behind his back, but that Braun responded that he wasn’t  “going to put them
nowhere.”
¶4                                                                                       Officer  Mastrocola  testified  that  Braun  “was  very irritated,”  had
“exaggerated movements,” and that Braun “began to ignore [him] immediately.”
He testified that he asked Braun for an explanation for his presence, but was
ignored by Braun.   He testified that Braun kept putting his hands in his pockets,
and that because of safety concerns, he advised Braun to keep his hands out of his
pockets.   Braun, however, did not do so.   Officer Mastrocola testified that Braun
“close[d] the reactionary gap that [Officer Mastrocola] had” between himself and
Braun.   In response, Officer Mastrocola stuck his hand up and “asked Braun to
step back,” which Braun refused to do.   Officer Mastrocola testified that Braun
told him to “[g]et lost” and again put his hands in his pockets.   Officer Mastrocola
further testified that Braun “told me I didn’t have jurisdiction.   He asked me to get
a  different law  enforcement agency there.    He—he  [was]  not  giving  me  any
credibility whatsoever as a police officer.”
¶5                                                                                       Officer Mastrocola testified that after he heard Officer Olson tell
Braun to put his hands behind his back, he heard Braun say he wasn’t going to and
observed Braun put his hands back into his pockets.   Officer Mastrocola testified
that he became concerned for his and Officer Olson’s safety, as well as the safety
of bystanders.   He testified that he was                                                “unable to physically control [] Braun’s
movements” while Braun was on his feet, and that in order to control Braun, he
wanted to get him to the ground.    To do so, he  “decentralized  [Braun] to the
ground” by  “sweep[ing] his one foot and direct[ing] him to the ground while
controlling his descent.”   Braun was then placed under arrest for trespassing.
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No. 2009AP839
¶6                                                                                       Wauwatosa  cited  Braun  with  resisting  arrest,  in  violation  of
WAUWATOSA ORDINANCE No. 7.02.01(18), and with criminal trespass to land, in
violation of WAUWATOSA ORDINANCE No. 7.02.010(5), which adopts Wisconsin’s
criminal trespass statute, WIS.  STAT.  § 943.13.2    See No.  7.02.010(5).    In the
meantime, Braun commenced the present action against Wauwatosa and Officers
Mastrocola and Olson.   Braun asserted claims for false arrest and for personal
injuries resulting from the officers’ alleged use of excessive force.   He also sought
declaratory judgment pursuant to WIS. STAT. § 806.04(2) to “determine the extent
and parameters” of the term “occupant” as used in § 943.13.
¶7                                                                                       Wauwatosa moved to dismiss the declaratory action and, following a
hearing on the matter, the circuit court granted Wauwatosa’s motion.   The court
stated that Braun took the “position that his rights are affected by [WAUWATOSA
ORDINANCE No. 7.02.010(5)], which tracks  [WIS. STAT.]  § 943.13.”   The court
interpreted   Braun’s  declaratory  judgment   action   as  seeking   two  things:
“clarification with respect to conduct he engaged in and clarification for future
purposes.”   With respect to clarifying Braun’s past conduct, the court ruled that
any issue relating to Braun’s past conduct with respect to No. 7.02.010(5) was
properly venued in Braun’s pending appeal of his conviction for violating that
ordinance.   With respect to providing Braun clarification for future purposes, the
court ruled that under WIS. STAT. § 806.04(2), it did not have the authority to
“declare clarification to statutes so you’ll know or not know how to act in the
future.”
                                                                                                                                                                            2  Braun states in his brief that he was convicted of both citations and that he appealed
                                                                                         those  convictions.    The  citations  were  ultimately  dismissed  on  December                                                                                               4,   2007.    See
Milwaukee County Case Nos. 2007FO61 and 2007FO60.
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No. 2009AP839
¶8                                                                                       A jury trial was held on Braun’s two remaining claims—false arrest
and use of excessive force.   The court precluded Braun from presenting to the jury
his opinion that the December 16, 2005 letter from Mayfair Properties banning
him from Mayfair Mall was illegal or a sham on the basis that it was not relevant.
Braun claims that the court also prevented him from presenting any evidence
regarding  the  motivating  forces  behind  Officers  Mastrocola’s  and  Olson’s
behavior.   Following Braun’s admission that the officers had probable cause to
arrest him, the circuit court dismissed, on Wauwatosa’s motion, Braun’s claim for
false arrest.   As to Braun’s remaining claim, the jury determined that Officers
Mastrocola and Olson had not used excessive force in effectuating their arrest of
Braun.  Braun appeals.
II.   ANALYSIS.
A.  Declaratory judgment action.
¶9                                                                                       Braun  challenges  the  circuit  court’s  dismissal  of  his  declaratory
judgment action.   Before a plaintiff may maintain a declaratory judgment action
under WIS. STAT. § 806.04, there must first exist a justiciable controversy.   Lake
Country Racquet & Athletic Club, Inc. v. Village of Hartland, 2002 WI App 301,
¶15,  259 Wis.  2d  107,  655 N.W.2d  189.                                               “This is so because the purpose of
[§ 806.04] is to allow courts to anticipate and resolve identifiable, certain disputes
between adverse parties.”   Olson v. Town of Cottage Grove, 2008 WI 51, ¶28, 309
Wis. 2d 365, 749 N.W.2d 211.   A controversy is justiciable when the following
four factors are present:
(1)   A  controversy  in  which  a  claim  of  right  is
asserted against one who has an interest in contesting it.
(2)   The  controversy  must  be  between  persons
whose interests are adverse.
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No. 2009AP839
(3)   The party seeking declaratory relief must have a
legal interest in the controversy—that is to say, a legally
protectable interest.
(4)   The issue involved in the controversy must be
ripe for judicial determination.
Id., ¶29 (citation and one set of quotation marks omitted).   Although a decision to
grant or deny declaratory relief falls within the discretion of the circuit court,
whether a claim is justiciable is a legal conclusion subject to our de novo review.
See id., ¶32-37.
¶10    Braun  sought  a  declaratory  judgment  clarifying  WIS.   STAT.
§ 943.13, which was adopted by WAUWATOSA ORDINANCE No. 7.02.010(5).   See
No. 07.02.010(5).   Braun agreed with the court that he sought clarification of both
his past and future conduct relating to No. 7.02.010(5).
¶11    The circuit court determined that it was not the appropriate forum to
provide clarification for Braun as to his past conduct relating to WAUWATOSA
ORDINANCE No. 7.02.010(5).   The court determined that the clarification Braun
sought  for  his  past  conduct  required  factual  determinations  that  were  more
appropriately addressed in the proceeding adjudicating the charges bought against
Braun by Wauwatosa for violating No.  7.02.010(5).   Braun does not challenge
those determinations.    He instead takes issue with the fact that the municipal
citations brought against him by Wauwatosa for resisting arrest and trespass to
property  were  later  dismissed,  which  he  claims  allowed  Wauwatosa  to
“circumvent[] with impunity a victim’s claim of misapplication of a law by merely
withdrawing the charge.”
¶12    Although we understand and are perhaps somewhat sympathetic to
the procedural difficulty Braun has faced in pursing his action for declaratory
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No. 2009AP839
judgment, Braun did not dispute before the court below, and does not dispute now,
the court’s determination that it was not the appropriate forum to address Braun’s
past  conduct  with  respect  to  WAUWATOSA   ORDINANCE  No.                                     7.02.010(5).
Furthermore, even if the circuit court in the proceeding below was the appropriate
forum, there is no longer a justiciable issue to be declared with respect to Braun’s
prior conduct.   The law is clear that a declaratory judgment action may not be
maintained if the issue involved is not  “‘ripe for judicial determination.’”   See
Olson, 309 Wis. 2d 365, ¶29 (citation omitted).   The citation against Braun for
violating No. 7.02.010(5) was dismissed.   Accordingly, there no longer exists an
issue ripe for judicial determination as to Braun’s past conduct.
¶13    We also agree with the circuit court that it did not have the authority
to  provide  the  clarification  Braun  sought  with  respect  to  his  potential  future
conduct.                                                                                         “‘A justiciable controversy requires the existence of present and fixed
rights.   A declaratory judgment will not determine hypothetical or future rights.’”
Zehner v. Village of Marshall,  2006 WI App  6,  ¶13,  288 Wis.  2d  660,  709
N.W.2d 64 (citation omitted).   Because Braun sought a determination from the
court regarding his hypothetical future conduct under WAUWATOSA ORDINANCE
No. 7.02.010(5), the court was without authority to provide declaratory relief.3
B.   Preclusion of evidence.
¶14    Braun contends the circuit court erred in precluding from trial his
opinions regarding the December 16, 2005 Mayfair Mall ban and related matters.
3  Braun asks this court to provide the declaratory judgment he sought in the circuit court
below.   As we explained above in ¶¶7-12, declaratory judgment is not appropriate in this case
because the controversy is not justiciable.
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No. 2009AP839
At trial, Braun attempted to present to the jury his opinion that the December 16
ban order was invalid.   He also attempted to present his opinion regarding the
officers’ motivations.   The court, however, precluded him from presenting such
evidence on the basis that it lacked relevancy.   We agree.
¶15    The admissibility of evidence lies within the circuit court’s sound
discretion.   See State v. Pepin, 110 Wis. 2d 431, 435, 328 N.W.2d 898 (Ct. App.
1982).   To be admissible, evidence must be relevant.   See WIS. STAT. § 904.02.
Evidence is relevant if it has “any tendency to make the existence of any fact that
is  of  consequence  to  the  determination  of  the  action  more  probable  or  less
probable than it would be without the evidence.”   WIS. STAT. § 904.01.
¶16    Following the dismissal of Braun’s claim for false arrest, the sole
claim tried to the jury was Braun’s claim that Officers Mastrocola and Olson used
excessive force on December 30, 2005, when they arrested him.   Neither Braun’s
opinion that Mayfair Mall’s December 16, 2005 ban was invalid, nor his opinion
regarding underlying motivations of the officers, was relevant to the question of
whether the officers employed reasonable or excessive force to overcome the
resistance of Braun at the time of his arrest.   See, e.g., WIS JI—CIVIL 2115.   We
therefore conclude that the preclusion of those opinions by the circuit court was
not erroneous.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
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