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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.
January 13, 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.   2009CV470
Appeal No.                                                                                    2009AP1763
STATE OF WISCONSIN                                                                                                                                                  IN COURT OF APPEALS
DISTRICT II
VILLAGE OF BUTLER,
PLAINTIFF-RESPONDENT,
V.
LEVARN CLAY,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Waukesha County:
Linda M. Van De Water, Judge.   Reversed and cause remanded with directions.
¶1                                                                                            BROWN, C.J.1         Levarn Clay did not show up for his OWI (first
offense) trial, although his attorney did.   The trial court, noting that he had not
shown up for his suppression hearing either and further noting that it had ordered
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2007-08).
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.




No. 2009AP1763
Clay to appear at all subsequent judicial proceedings, ordered a default judgment.
We reverse.    Our supreme court long ago held that a court may not default a
defendant to a noncriminal action so long as the defendant appears by his attorney.
We are bound by that law, as is the trial court.
¶2                                                                                     The pertinent facts are as follows:   Clay lost in the municipal court
and took advantage of our state statute allowing a de novo proceeding in our trial
courts.    He filed a motion to suppress but did not appear at the hearing.    His
counsel did appear.   When counsel would not stipulate to Clay’s identity, the trial
court ordered Clay to appear in person at all further proceedings including trial.
Clay did not appear at trial, though again, his counsel did.   The trial court found
Clay to be in default for disobeying the court order and entered a judgment of
conviction.   Clay appeals.
¶3                                                                                     Wisconsin Supreme Court Rule 11.02 (2002) governs appearances
by attorneys on behalf of their clients.  It provides:
(1)   Authorized.   Every person of full age and sound mind
may appear by attorney in every action or proceeding by or
against the person in any court except felony actions, or
may prosecute or defend the action or proceeding in person.
SCR 11.02(1) (2002).
¶4                                                                                     Under SCR 11.02, a party in a civil action does “‘appear’ at trial by
the fact that … counsel appeared.”   Sherman v. Heiser, 85 Wis. 2d 246, 254-55,
270 N.W.2d 397 (1978) (trial judges should not grant default judgment under WIS.
STAT.  §  806.02(5) when a person appears through an attorney based on WIS.
STAT.  § 757.27, the statutory predecessor to SCR  11.02).    The importance of
Sherman cannot be understated.   It is the law and it applies to this case.   It has
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No. 2009AP1763
been on the books for over thirty years and has not been overruled.   We are bound
by that case.
¶5                                                                                          The Village does not cite to or attempt to distinguish Sherman in
any way.   Instead, it argues that this was not so much a default judgment for
failing to appear, but a default judgment for failing to obey a court order in a civil
case.   And, under WIS. STAT. § 805.03, the Village asserts that the court had the
authority to enter a default for this reason.   But the Village apparently assumes
that the court had the inherent authority to order Clay to be present and also
assumes that, because of this inherent authority, the trial court’s action was not a
misuse of discretion.
¶6                                                                                          The Village is wrong.   First, a trial court may not enter an order that
is  in  clear  contravention  to  established  case  law.    The  erroneous  exercise  of
discretion occurs in many forms, but one of them is a discretionary choice based
upon an error of law.   See, e.g., Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶18,
269  Wis.  2d  598,  676  N.W.2d  452.    Here,  the  trial  court  acted  against  the
established  law.    Second,  not  only  is  the  case  law  against  the  trial  court’s
discretionary choice, so is our state constitution.   Clay is entitled to appear by
counsel in a civil matter pursuant to WIS. CONST. art. I, § 21, governing the rights
of suitors.   It provides:                                                                  “In any court of this state, any suitor may prosecute or
defend his suit either in his own proper person or by an attorney of the suitor’s
choice.”   Id., § 21(2).   This provision gives the right, in a civil trial, to choose
whether to defend oneself or to have an attorney do it.   City of Sun Prairie v.
Davis, 217 Wis. 2d 268, 278, 579 N.W.2d 753 (Ct. App. 1998), rev’d on other
grounds, 226 Wis. 2d 738, 595 N.W.2d 635 (1999).
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No. 2009AP1763
¶7                                                                                        The third reason requires a separate paragraph.   We understand the
trial court’s order to be directed to that tactic of some traffic defense lawyers to
make the government prove identity without the defendant being in the courtroom.
Although the effectiveness of this tactic is doubtful and its use is arguably puerile,
there is no law against it.   In fact, the law has evolved so as to manage it.   See
United  States  v.  Morrow,                                                               925  F.2d  779,  781  (4th  Cir.                                      1991)  (a  courtroom
identification is unnecessary if other evidence reasonably allows the inference that
the defendant on trial is the person who committed the charged acts); see also
State v. Hill, 520 P.2d 618, 619 (Wash. 1974) (identity involves a question of fact
and “any relevant fact, either direct or circumstantial, which would convince or
tend to convince a person of ordinary judgment … of the identity of a person,
should be received and evaluated”).
¶8                                                                                        We surmise that the trial court’s order was designed to prevent the
use of that tactic.   But why?   The only cogent reason that this court can envision is
that the trial court must have felt that it had the inherent power to enhance the
search for the truth and to prohibit what it believed to be a tactical exercise to
prevent such enhancement.
¶9                                                                                        As it happens, our supreme court has spoken to a court’s inherent
power to control that tactical exercise.   In City of Sun Prairie v. Davis, 226 Wis.
2d 738, 595 N.W.2d 635 (1999), the supreme court was presented with just such a
tactic.   While it is true that the case was based on an occurrence in a municipal
court, our supreme court spoke more generally to the question of whether any
court has the inherent authority to order a defendant in a noncriminal case to
personally appear on grounds that doing so will foster a search for the truth and
thereby aid the orderly and efficient administration of justice.   Our supreme court
stated, in pertinent part:
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No. 2009AP1763
[T]he 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  based
solely on inherent authority, and we have found none….
In fact, this court has previously stated that a defendant
who failed to personally appear in a civil 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,   270  N.W.2d  397.   “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.”   Id. at 256, 270 N.W.2d 397.
[W]e determine that the existence of  … the orderly and
efficient exercise of … jurisdiction is not dependent upon
the presence appearance of the defendant.
Id. at 759-760.   Thus, to the extent that one may argue how the trial court may
circumvent the holding in Sherman by relying on its inherent authority, City of
Sun Prairie puts that to rest.
¶10    We categorically reject the Village’s argument that the trial court
had authority under WIS. STAT. § 345.37(1) to deem a nonappearance at trial as
tantamount to a plea of no contest and to enter judgment accordingly.   As we have
seen from the above, Clay did appear—albeit by counsel.     We also categorically
reject the argument that Clay had to bring a motion under WIS. STAT. § 806.07,
seeking relief from a default judgment.   The order by the trial court in this instance
was based on what it believed to be its statutory and inherent authority to sanction
Clay for failure to obey a court order.   Because the court had no basis in law to
make such order, it follows that Clay did not have to use § 806.07 to seek relief
since the order itself was invalid as a matter of law.   Section 806.07 is reserved for
those instances where a judgment, though valid, should nonetheless be vacated for
other reasons.   The judgment here, being based on an invalid order, is itself invalid
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No. 2009AP1763
and unconstitutional.   We reverse and remand for further proceedings consistent
with this opinion.
By  the  Court.—Judgment  reversed  and  cause  remanded  with
directions.
This opinion will not be published in the official reports.   See WIS.
STAT. RULE 809.23(1)(b)4.
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No.   2009AP460-CR

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