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COA: dismissal with prejudice not unreasonable remedy for county’s repeated failure to produce key witness

Fond du Lac County v. John Anthony Hettwer, 2020AP 1422, 7/21/21, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

The county charged Hettwer with OWI- and PAC-first. At the first attempted trial, the jury was sworn, but before opening statements could begin, the county told the court that the phlebotomist it intended to call as a witness was home with a sick child, and asked that she be allowed to testify by telephone. Hettwer objected and ultimately the court declared a mistrial. (No double-jeopardy problem here because an OWI-1 is non-criminal.)

On the second trial date, the county told the court it was ready to go and that the phlebotomist would testify. Just five minutes later, the county informed the court that actually, she wouldn’t–because she was “out of the country getting married.” The court asked when the county had learned of this fact, and on inquiring with his office, counsel told the court there was a note in the file but it wasn’t clear when it had been put there.

The judge noted that the county had failed properly to subpoena its witness. As a sanction, it initially dismissed the case without prejudice and assessed jury fees against the county. But after the county asked the court to reconsider the jury fees, the court dismissed the case with prejudice (while eliminating the fees). The county appealed.

The court of appeals upholds the sanction as a valid exercise of the circuit court’s discretion. It notes that dismissal for failure to prosecute is justified unless “there is no reasonable basis to support the circuit court’s determination that the aggrieved party’s conduct was egregious or … if the aggrieved party can establish a clear and justifiable excuse for the delay in prosecuting the action.” (¶11 (citing Monson v. Madison Family Inst., 162 Wis. 2d 212, 224, 470 N.W.2d 853 (1991).)). Whether an excuse is “justifiable” is a balancing of interests between the court’s (and presumably the parties’) interest in timeliness and the challenging party’s interest in having the case go forward. (¶12):

Fond du Lac contends that its conduct was not egregious as it was willing and able to move forward with the jury trial without the phlebotomist’s testimony and that its lack of proper service of a subpoena on the phlebotomist shows that it did not believe the phlebotomist’s testimony was necessary to the case. Fond du Lac has the burden to show that its excuses are “clear and justifiable.” See Prahl, 142 Wis. 2d at 666 (citation omitted). It has not done so, and it only offers additional excuses. Fond du Lac ignores the circuit court’s findings that its improper subpoena “system” is of “great frustration to the Court” and to the “administration of cases within this county.” Fond du Lac also ignores that it did, within its own records, have notice that the phlebotomist would be unavailable on January 23, 2020, but its system was deficient both in keeping a record of when that information was obtained and in getting that information to all affected files. Fond du Lac has not met its burden to overcome the court’s finding that Fond du Lac’s case against Hettwer had “not been prosecuted adequately and properly” and that Fond du Lac “quite frankly, was negligent in not procuring that witness. [Fond du Lac] had time to get that witness. [It] didn’t subpoena that witness properly.”

The circuit court put Fond du Lac on notice at the first trial that the phlebotomist’s appearance at trial was necessary, regardless of whether her testimony was required by law or whether Fond du Lac believed her testimony was important for its case. At the second trial, the court found that the phlebotomist’s failure to appear was “without justification legally” due to both the length of time the case had been pending and Fond du Lac’s inability to show that the phlebotomist’s presence had been assured in some way. Fond du Lac has not met its burden to show that its excuses for its failings are “clear and justifiable.” See Prahl, 142 Wis. 2d at 666 (citation omitted). Fond du Lac’s failures, while unintentional, were shown by the court to be “extreme, substantial and persistent” in the administration of cases within Fond du Lac County and as such its conduct is egregious. See Teff, 265 Wis. 2d 703, ¶14 (citation omitted).


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