City of Waukesha v. Isaac Kinuthia

COURT OF APPEALS
DECISION NOTICE
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.
August 5, 2020
A party may file with the Supreme Court a
Sheila T. Reiff 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.

Appeal No. 2020AP431 Cir. Ct. No. 2019CV2021

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

CITY OF WAUKESHA,

PLAINTIFF-RESPONDENT,

V.

ISAAC KINUTHIA,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County:
BRAD SCHIMEL, Judge. Affirmed.

¶1 DAVIS, J.1 Isaac Kinuthia, appearing pro se, appeals a parking
citation he received in the City of Waukesha. The citation was for parking within

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2020AP431

fifteen feet to the near limits of a crosswalk, in violation of Waukesha Municipal
Ordinance § 7.04. This ordinance, in turn, mirrors WIS. STAT. § 346.53(5), which
makes this proscription statewide. Kinuthia claims that it is a violation of
constitutional due process for the ordinance, and presumably the statute, not to
require signage alerting motorists of the no-parking zone.

¶2 Kinuthia contested the ticket he received in the municipal court,
which upheld the citation after conducting a trial on the issue. A hearing in the
circuit court affirmed the conviction. He now appeals to this court. We affirm.

¶3 Kinuthia’s appeal suffers from any number of procedural
deficiencies, including a failure to provide a transcript of the circuit court
proceedings, a failure to develop a supporting argument for his constitutional
challenge and, perhaps with his tenacity in fighting this $20 citation finally
waning, a failure to file a reply brief. These deficiencies alone are enough to
warrant summary dismissal of his appeal. Nonetheless, given Kinuthia’s status as
a pro se litigant, and because the City has taken the time and effort to thoroughly
address the substance of Kinuthia’s arguments, we will discuss the merits. In the
process, we can perhaps bring clarity to a situation that if not necessarily needing
it (since in our view the law is clear) certainly is one that routinely occurs on
Wisconsin streets.

¶4 We start with the fact that there is no question that Kinuthia was in
violation of the ordinance and statute. The Waukesha parking agent who cited
him, Michelle Gartner, testified at trial that she observed Kinuthia’s blue Nissan
less than ten feet from the crosswalk, which was clearly marked. Although
Kinuthia scored a point of sorts on cross-examination by having Gartner estimate
his height and then proclaiming that she was off by four inches—a point we will

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accept as true for purposes of this appeal—this was not the Perry Mason moment
he was apparently hoping for. To the contrary, Gartner’s accuracy in judging that
the vehicle was parked more than five feet into the forbidden fifteen-foot zone was
bolstered by her experience and established beyond dispute by three photographs
she took at the scene. The evidence was further unrefuted that Kinuthia was not in
the process of loading or unloading his vehicle. All of which is to say that the
factual basis for the violation was clear; we can proceed with the legal questions
that make up the gist of Kinuthia’s appeal.

¶5 Kinuthia starts his constitutional challenge by complaining that the
circuit court’s failure to require the City to file a brief or hold oral argument
separate from a January 24, 2020 conference deprived him of procedural due
process. We are dubious of this legal proposition in light of Kinuthia’s failure to
request a de novo trial. As such, the circuit court’s review was limited to the
transcript of the municipal court proceedings, and neither party was entitled to
briefing or oral argument. See City of Middleton v. Hennen, 206 Wis. 2d 347,
351, 354-55, 557 N.W.2d 818 (Ct. App. 1996). Regardless, whatever merit this
argument may have is beside the point given Kinuthia’s failure to provide a
transcript of the circuit court proceedings about which he complains. See WIS.
STAT. RULES 809.11(4), 809.19(1)(e) (appellant shall request copies of the
transcript of lower-court proceedings, and appellate arguments must cite to the
those parts of the record relied upon). Accordingly, we reject it without further
discussion.

¶6 Kinuthia’s principal argument is that due process requires streets be
marked with “no parking” or similar signage, alerting motorists to the fifteen-foot
no-parking restriction. Kinuthia’s position might have at least arguable merit if
this were only a local ordinance, although a successful argument would more

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likely be based in Wisconsin statutory law, rather than due process. See WIS.
STAT. § 346.53(6) (prohibiting parking “[u]pon any portion of a highway where
and at the time when parking is prohibited, limited or restricted by official traffic
signs”). But the fifteen-foot restriction is duplicative of a statewide restriction
embodied in § 346.53(5). A separate section of WIS. STAT. ch. 346 expressly
provides that “[w]henever a particular section [in ch. 346] does not state that signs
are required, such section is effective even though no signs are erected or in
place.” WIS. STAT. § 346.02(7). Consequently, Kinuthia is legally presumed to
know and be capable of complying with the fifteen-foot restriction, which is part
of Wisconsin’s “rules of the road.”

¶7 WISCONSIN STAT. § 346.02(7) codifies, in the context of the state
traffic code, the long-held maxim that ignorance of the law is not a defense. See
State v. Collova, 79 Wis. 2d 473, 488, 255 N.W.2d 581 (1977). To be sure, if
such ignorance were brought about by some vagueness in the law on its face, or as
applied to a particular situation, the maxim might yield to due process concerns.
See Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (“Living
under a rule of law entails various suppositions, one of which is that ‘(all persons)
are entitled to be informed as to what the State commands or forbids.’” (citation
omitted)). Due process might be implicated if, say, the crosswalk to which the
ordinance and statute applied were not clearly marked, or if the ordinance and
statute themselves were somehow unclear in what they proscribed. We need not
delve into such questions here. Due process plays no role in deciding a case where
the defendant’s position is that he was entitled to a contemporaneous reminder of a
statutory requirement that is both clear on its face and clearly applicable to his
situation. The order of the circuit court is affirmed.

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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