Court of appeals declares pro se appeal frivolous and orders sanctions

Village of McFarland v. Dale R. Meyer, 2018AP2130, 5/23/19, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)

Harsh! That’s best description for this court of appeals decision sanctioning Meyer for his pro se appeal of his first OWI. The decision runs afoul of Amek Bin- Rilla v. Israel, 113 Wis. 2d 514, 335 N.W. 384 (1983) and Howell v. Denomie, 2005 WI 81, 282 Wis. 2d 130, 698 N.W.2d 62. Hopefully, a lawyer will take Meyer’s appeal, file a petition for review, and at least get the frivolous finding reversed. 

Meyer was stopped for a traffic violation and apparently refused to submit to blood alcohol testing. So the circuit court held a refusal hearing and then a jury trial, which resulted in a conviction of OWI 1st and an improper stop at a stop sign. Meyer appealed pro se. It is not clear whether he is indigent. It is clear that his briefs really irritated the court of appeals.

¶5 Meyer, pro se, has filed rambling appellate briefs that contain allegations that are unsupported by record cites, speculation that goes nowhere, and information that has nothing to do with challenging either the refusal order or his OWI conviction. Although appellate courts make some allowances for the failings of parties who, as here, are not represented by counsel, “[w]e cannot serve as both advocate and judge.” State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992). Further, appellate courts have no obligation to scour the record to develop viable, fact-supported legal theories on the appellant’s behalf. See State v. Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999). Nonetheless, I have reviewed the entire record here and still find no arguable basis on which to challenge the proceedings below.

¶8 Meyer (1) does not support his argument with any legal discussion of the pertinent standard of review or principles of law; (2) did not object to the video at any point during the circuit court proceeding; (3) does not point to any record support for his allegation that the attorney for the Village played an altered version of the video; and (4) does not explain how he was prejudiced, even assuming an altered version was played. I could expand on each of these failings, but that would further waste court resources on this frivolous appeal.

¶11 . . . I conclude that Meyer “knew, or should have known, that the appeal … was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.” See WIS. STAT. RULE 809.25(3)(c)2. Accordingly, I remand for the circuit court to determine “costs, fees, and reasonable attorney fees” pursuant to RULE 809.25(3).

Check out Meyer’s briefs for yourselves. Like so many pro se pleadings, they are hard to understand, and they neglect to cite legal authorities. His Table of Authorities includes a list of record cites (not case cites or statutes) to support his argument. Nevertheless Meyer is at all times respectful of the circuit court and court of appeals. These are clues that perhaps he lacked (a) an ability to express himself, (b) an understanding of appellate procedure, and (c) knowledge of the substantive law applicable to his case. These are not signs that he knew or should have know that his appeal lacked a reasonable basis in law but pursued it anyway. The court of appeals cites no evidence of intentional conduct.

Pro se pleadings are often very hard to decipher. Courts must liberally construe them in order to determine if they state any grounds for relief. Bin-Rilla, 113 Wis. 2d at 520.  Furthermore, when deciding whether to declare a proceeding frivolous and award fees and costs courts must resolve all doubts in favor of the party alleged to have filed the frivolous pleading. Howell, ¶8. In declaring Meyer’s appeal frivolous and sanctioning him the court of appeals ignored both of these principles.

And get this. This is Meyer’s second attempt to appeal in this case. A lawyer filed his first one prematurely and got it dismissed for lack of jurisdiction. No, the court of appeals did not sanction the lawyer.  Heaven forbid.