City of Beaver Dam v. Diane Lynn Tomko

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.
November 12, 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. 2020AP1002 Cir. Ct. No. 2020CV61

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

CITY OF BEAVER DAM,

PLAINTIFF-RESPONDENT,

V.

DIANE LYNN TOMKO,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dodge County:
BRIAN A. PFITZINGER, Judge. Affirmed.

¶1 FITZPATRICK, P.J.1 Diane Tomko, pro se, appeals an order of the
Dodge County Circuit Court finding her guilty of operating a motor vehicle
without insurance, operating a motor vehicle without registration, operating a

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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 unless otherwise noted.
No. 2020AP1002

motor vehicle without an operator’s license, and resisting an officer.2 Tomko was
found guilty of each citation by the City of Beaver Dam Municipal Court and
unsuccessfully appealed those findings to the circuit court.

¶2 On appeal, Tomko argues that state laws prohibiting the operation of
a motor vehicle that is unregistered, see WIS. STAT. § 341.04(1), the operation of a
motor vehicle without an operator’s license, see WIS. STAT. § 343.05, and the
operation of a motor vehicle without insurance, see WIS. STAT. § 344.62(1),
impermissibly interfere with her constitutional right to drive on public highways
“freely unencumbered.” Tomko is wrong.

¶3 The constitutionality of driver licensing, registration, and insurance
statutes is a question of law. State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377,
780 N.W.2d 90. A statute is presumed to be constitutional and the party
challenging the statute’s constitutionality bears the burden of “prove[ing] that the
statute is unconstitutional beyond a reasonable doubt.” Id. (quoted source
omitted).

¶4 The Wisconsin Supreme Court has held that driving on the highways
of this state is not a right but is, instead, a privilege that may be subjected to

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Tomko has not filed a transcript of the trial proceedings and has stated in her
Statement on Transcript filed in this court that doing so “is not necessary for prosecution
of [her] appeal.” In addition, Tomko’s appendix filed in this court contains numerous
documents purportedly from the proceedings before the municipal and/or circuit court.
Those documents are not part of the record before this court and cannot be considered.
See Nelson v. Schreiner, 161 Wis. 2d 798, 804, 469 N.W.2d 214 (Ct. App. 1991). Even
if those documents were considered, it would not make a difference to the result.

I also note that the brief of the City of Beaver Dam includes purported facts that
lack citation to the record, as required by WIS. STAT. RULE 809.19(e). See Nelson, 161
Wis. 2d at 804. This indiscretion by the City does not affect the result.

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No. 2020AP1002

reasonable regulations. See Steeno v. State, 85 Wis. 2d 663, 671, 271 N.W.2d 396
(1978); State v. Seraphine, 266 Wis. 118, 123, 62 N.W.2d 403 (1954). The
regulation of the nation’s highways is primarily the responsibility of the states, and
that power is “broad and pervasive.” See Bibb v. Navajo Freight Lines, Inc., 359
U.S. 520, 523 (1959). “[A] state may rightfully prescribe uniform regulations
necessary for public safety and order in respect to the operation upon its highways
of all motor vehicles.” Hendrick v. Maryland, 235 U.S. 610, 622 (1915). “[T]o
this end [a state] may require the registration of such vehicles and the licensing of
their drivers,” id., and may require drivers to obtain liability insurance coverage,
see Sprout v. City of South Bend, 277 U.S. 163, 171-72 (1928).

¶5 Tomko’s other assertions about the constitutionality of the relevant
Wisconsin Statutes are incoherent. I reject those arguments on that basis. State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (declining to
address inadequately developed arguments). Accordingly, I reject Tomko’s
constitutional challenge and affirm the order of the circuit court.

CONCLUSION

¶6 For the foregoing reasons, the order of the circuit court is affirmed.

By the Court.—Order affirmed.

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

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