State v. Kevin Richard Raddemann

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.
December 21, 2022
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. 2022AP668-CR Cir. Ct. No. 2021CM699

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEVIN RICHARD RADDEMANN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Washington
County: SANDRA JO GIERNOTH, Judge. Affirmed.

¶1 NEUBAUER, J.1 Kevin Richard Raddemann appeals from a
judgment of conviction entered by the circuit court after he pled guilty to one

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP668-CR

count of operating while intoxicated, third offense. Raddemann was arrested after
a City of Hartford police officer stopped his vehicle for violating a city ordinance
and detected signs of intoxication. Raddemann argues that the officer lacked
reasonable suspicion to believe he had violated the ordinance, which prohibits
persons from being in a cemetery outside of daylight hours, because the ordinance
is unconstitutionally vague. Raddemann raised this argument in the circuit court
but made no effort to serve the attorney general or add the City of Hartford as a
party as he was required to do under WIS. STAT. § 806.04(11). For this reason, we
decline to consider his constitutional challenge to the ordinance and affirm his
conviction.

BACKGROUND

¶2 Around 9:30 p.m. on the night of June 25, 2021,
Officer Adam Albea of the City of Hartford Police Department was driving his
squad car east through the city on Highway 60 when he saw a vehicle moving
northbound through Pleasant Hill Cemetery. By city ordinance, most persons are
prohibited from being in the cemetery outside of daylight hours. See HARTFORD,
WIS., MUNICIPAL CODE § 27.13(1) (1997) (“No person other than cemetery
employees or other police officers shall be within the cemetery except during
daylight hours.”).2

¶3 Albea parked in a nearby driveway and watched as the vehicle
stopped at the entrance to the cemetery, turned right out of the cemetery, and
began traveling east on Highway 60. As the vehicle passed him, Albea noted that

2
A copy of the ordinance can be found on the website of the City of Hartford,
https://ci.hartford.wi.us/DocumentCenter/View/262/Municipal-Code-Chapter-27-PDF.

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No. 2022AP668-CR

it was not a police vehicle and did not resemble one of the vehicles belonging to
the Hartford Parks and Recreation Department, which is in charge of the cemetery.
Albea pulled the vehicle over and identified Raddemann as the driver.

¶4 According to the complaint, Albea observed several signs that
Raddemann might be intoxicated, including the smell of intoxicants, Raddemann’s
red, bloodshot, and glossy eyes, and his difficulty retrieving his insurance card.
Raddemann allegedly told Albea that he was coming from the Pour House in
Hartford and that he had consumed six beers since 4:00 p.m. that day. After
Raddemann’s performance on field sobriety tests yielded additional signs of
intoxication, Albea arrested him.

¶5 Raddemann was charged with one count of operating a motor
vehicle while under the influence of an intoxicant, third offense, and one count of
operating with a prohibited alcohol concentration, third offense. He was also
issued a “warning” citation for violating § 27.13(1) of the Hartford Municipal
Code. Raddemann moved to suppress his statements and the other evidence
obtained after Albea stopped him, arguing that the stop violated his rights under
the Fourth Amendment and the Wisconsin Constitution.3 In his motion,
Raddemann asserted that the ordinance was unconstitutionally overbroad but later
clarified that he was “not challenging the constitutionality of the ordinance on
overbreadth grounds.” Following a hearing on the motion, the circuit court
concluded that Raddemann’s rights had not been violated because Officer Albea

3
The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. See U.S. CONST. amend. IV. The same protection is provided by article I,
section 11 of the Wisconsin Constitution. See WIS. CONST. art. I, § 11.

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No. 2022AP668-CR

had reasonable suspicion to believe that Raddemann was in the cemetery in
violation of the city ordinance.

¶6 Raddemann filed a motion for reconsideration, raising a new
argument: The ordinance is unconstitutionally vague because the removal of the
gates at the entrance off of Highway 60 some time before his arrest makes it
impossible for a reasonable person to determine when he or she enters the
cemetery grounds and thus to conform his or her conduct to the ordinance. The
circuit court denied the reconsideration motion as untimely because it was filed
five days after a deadline the court had set for motions to be filed. Raddemann
subsequently pled guilty to one count of operating while intoxicated contrary to
WIS. STAT. § 346.63(1)(a).

¶7 Raddemann raises his vagueness challenge to the ordinance on
appeal. The State offers several responses, but this court need only discuss one to
resolve this appeal.4 The State contends that Raddemann is barred from
challenging the constitutionality of the ordinance because he did not comply with
WIS. STAT. § 806.04(11). That provision in Wisconsin’s Uniform Declaratory
Judgments Act states in relevant part as follows:

In any proceeding which involves the validity of a
municipal ordinance or franchise, the municipality shall be
made a party, and shall be entitled to be heard. If a statute,
ordinance or franchise is alleged to be unconstitutional, …
the attorney general shall also be served with a copy of the
proceeding and be entitled to be heard.

4
See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (when one
issue is dispositive of an appeal, we need not discuss other issues).

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No. 2022AP668-CR

Sec. 806.04(11). The statute’s requirements apply even where no declaratory
judgment is sought, see Brown County Human Services v. B.P., 2019 WI App 18,
¶25, 386 Wis. 2d 557, 927 N.W.2d 560, and where “the constitutional issue is
collateral to or a preliminary step in the determination of the rights sought to be
determined,” Kurtz v. City of Waukesha, 91 Wis. 2d 103, 117, 280 N.W.2d 757
(1979). It also applies regardless of whether the statute or ordinance is alleged to
be unconstitutional on its face or as applied in a particular case. B.P., 386 Wis. 2d
557, ¶25.

¶8 This describes Raddemann’s challenge. He does not seek a
declaratory judgment that the ordinance is unconstitutional but instead asserts its
unconstitutionality as the predicate of his argument that Officer Albea violated his
Fourth Amendment rights because Albea lacked reasonable suspicion that
Raddemann had violated the ordinance. More specifically, Raddemann argues
that the absence of a gate at the cemetery entrance deprived the ordinance of an
“objectively enforceable standard” for law enforcement to determine whether a
violation occurred, and thus Albea could not have had a reasonable basis to
suspect that Raddemann had violated it. Because Raddemann’s motion to
suppress was predicated on his assertion that the ordinance is unconstitutionally
vague, he was obliged to notify the attorney general and seek joinder of the City of
Hartford as a party so that it could, if it wished, defend the constitutionality of the
ordinance.

¶9 Raddemann points to nothing in the record showing that he complied
with WIS. STAT. § 806.04(11). Instead, he emphasizes that he is not asserting an
affirmative constitutional claim seeking damages but rather is raising his
constitutional challenge as part of his defense to criminal charges. Raddemann
argues that an exception to § 806.04(11) exists for such defensive assertions of

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No. 2022AP668-CR

unconstitutionality, but the cases he cites do not support his argument. In Ocean
Accident & Guarantee Corp. v. Poulsen, 244 Wis. 286, 290, 12 N.W.2d 129
(1943) and State v. Texaco, Inc., 14 Wis. 2d 625, 631, 111 N.W.2d 918 (1961),
the supreme court merely recognized that a defendant may challenge a statute’s
constitutionality as part of its defense where a claim against it depends on the
statute. Neither case stands for the proposition that a defendant need not comply
with § 806.04(11)’s notification and joinder requirements simply because it raises
a constitutional challenge as part of its defense, rather than as part of a claim
seeking affirmative relief. Indeed, this court has repeatedly recognized that failure
to comply with the statute bars judicial review of a constitutional challenge to a
statute when made as part of a defense. See B.P., 386 Wis. 2d 557, ¶¶24-27
(declining to consider argument that application of statute to defendant would
violate constitutional right to equal protection where defendant had not notified
attorney general); Midwest Mut. Ins. Co. v. Nicolazzi, 138 Wis. 2d 192, 202-03,
405 N.W.2d 732 (Ct. App. 1987) (declining to consider defendant insurer’s
argument that strict reading of statute would unconstitutionally impair contracts
because insurer failed to notify attorney general).

¶10 Because Raddemann has not shown compliance with WIS. STAT.
§ 806.04(11), we decline to consider the merits of his constitutional challenge to
the ordinance.

By the Court.—Judgment affirmed.

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

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