County of Monroe v. Nicolas Hodgman Withey

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COURT OF APPEALS

DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
tn eo ee
2026 oo
1 A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See Wis. STAT. § 80810
and RULE 809.2.
Appeal No. 2025AP1802 Cir. Ct. No. 20240290
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
COUNTY OF MONROE,
PLAINIIFF-RESPONDENT,

V.
NICOLAS HODGMAN WITHEY,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Monroe County:
TODD L. ZIEGLER, Judge. Affirmed.

{1 § BLANCHARD, J.! A jury found Nicolas Withey guilty of two
forfeitures—disorderly conduct and resisting an officer—in violation of
ordinances enacted by Monroe County (“the County”). The circuit court ordered

' This appeal is decided by one judge pursuant to WIs. STAT. § 752.31(2)(b) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.

No. 2025AP1802
2
Withey to pay corresponding fines and costs. Representing himself on appeal,
Withey purports to raise 14 issues. Withey also asks that this court direct that he
receive from the County “full financial compensation for all fines and fees paid as
a result of the charges brought against him.” Withey fails to establish that he is
entitled to any relief on any ground. Accordingly, I affirm.
BACKGROUND
¶2 The following is the basic context, according to a pretrial motion
filed by the County. The clerk of the Village of Kendall (“the village”) sent a
letter to Withey on July 1, 2024, notifying him that he was required to mow
“noxious weeds” growing on his property.2 The notice stated that, if the property
was not mowed within 10 days, then a village representative would come onto
Withey’s property to mow it, in which case Withey would be responsible for the
mowing cost. On August 20, 2024, a village representative arrived to mow the
property. The County alleged that, during an ensuing encounter with the
representative, Withey committed disorderly conduct, in violation of MONROE
2 While I do not reach the merits of Withey’s purported issues for reasons explained
below, I note the following for context. “Noxious weeds” are defined in WIS. STAT.
§ 66.0407(1)(b), and § 66.0407(3) directs all persons owning land to “destroy all noxious weeds”
on their lands. Procedures for the appointment of a “weed commissioner” by a village, and the
powers, duties, and compensation of weed commissioners are provided in WIS. STAT. § 66.0517.
Of note here, § 66.0517(3)(a) provides in part:
If a person in a district neglects to destroy noxious weeds as
required under [§] 66.0407(3), the weed commissioner shall
destroy, or have destroyed, the noxious weeds in the most
economical manner. A weed commissioner may enter upon any
lands that are not exempt under [§] 66.0407(5) and cut or
otherwise destroy noxious weeds without being liable to an
action for trespass or any other action for damages resulting from
the entry and destruction, if reasonable care is exercised.

No. 2025AP1802
3
COUNTY, WIS., CODE OF ORDINANCES ch. 20, § 16, and he resisted or obstructed
an officer, in violation of ch. 20, § 13(b) of the ordinances.3
¶3 After the County issued citations to Withey and filed a
corresponding forfeiture complaint, both sides filed written pretrial motions in the
circuit court.
¶4 The following are among the events reflected in circuit court docket
entries contained in the record on appeal:
• On February 19, 2025, the circuit court held a hearing, at which the
court denied a motion made by Withey to dismiss the forfeiture
complaint.
• On July 16, 2025, the circuit court held a final pretrial hearing. A
docket entry from that hearing states, “Court goes over Pre-trial
Motions – Motions to dismiss are denied.”
• On August 7, 2025, the circuit court held a trial, at which a jury found
Withey guilty on both forfeitures.
¶5 The record contains a July 21, 2025 letter issued to the parties by the
circuit court that included some rulings. The letter refers to “our recent hearing,”
which is apparently a reference to the July 16 final pretrial hearing, strongly
implying that the rulings in the July 21 letter were based at least in part on
evidence or argument that had been offered by the parties at a hearing.
3 This reference to the MONROE COUNTY, WIS., CODE OF ORDINANCES is to the online
register last revised July 21, 2026 (https://library.municode.com/wi/monroe_county/codes/
code_of_ordinances).

No. 2025AP1802
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¶6 Withey filed a notice of appeal on August 8, 2025.
¶7 At a hearing on October 3, 2025, the circuit court heard evidence to
determine whether Withey was indigent for purposes of potentially entitling him
to free transcripts. See State ex rel. Girouard v. Circuit Ct. for Jackson Cnty.,
155 Wis. 2d 148, 159, 454 N.W.2d 792 (1990) (a litigant in a civil proceeding may
obtain a waiver of transcript fees if the litigant is indigent and the litigant’s claim
is one for which relief can be granted). The court issued a written order reflecting
a finding that Withey was not indigent for this purpose.
¶8 There are no transcripts in the record on appeal of any proceedings
that occurred in the circuit court in this case.
DISCUSSION
¶9 Withey’s briefing is deficient in many respects. Compounding the
problem, some of the deficiencies exacerbate other deficiencies. The result is that
he fails to develop a single issue that is reviewable on the merits.
¶10 I start with a general point that applies to each of the more specific
points that follow. This court makes some allowances for shortcomings in
submissions by litigants who are not represented by counsel, as here. State ex rel.
Harris v. Smith, 220 Wis. 2d 158, 164-65, 582 N.W.2d 131 (Ct. App. 1998). At
the same time, however, this court “cannot serve as both advocate and judge” by
“making an argument for [a] litigant.” Id. at 165; Industrial Risk Insurers v.
American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769
N.W.2d 82 (“Arguments unsupported by legal authority will not be considered,”
and “we will not abandon our neutrality to develop arguments.”).

No. 2025AP1802
5
¶11 One deficiency in Withey’s briefing is that, with isolated exceptions
that do not solve the problem, Withey’s briefs on appeal lack citations to the
appellate record. See WIS. STAT. RULE 809.19(1)(d) (providing that an appellant’s
brief must include “a statement of facts relevant to the issues presented for review,
with appropriate references to the record”); RULE 809.19(1)(e) (providing that the
argument on each issue in an appellate brief must “contain the contention of the
appellant, the reasons therefor, with citations to the authorities, statutes and parts
of the record relied on”); State v. McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d
79, 742 N.W.2d 322 (this court may decline to consider “arguments that lack
proper citations to the record”). Adding to the problem, Withey repeatedly cites to
documents using the format “Exhibit A,” “Exhibit B,” and so on, without referring
to any record designation for that document. I can discern contextual clues
suggesting what documents some of these “Exhibits” might be, but for other
“Exhibits” it is entirely unclear. Further, from all that I can tell, some of these
“Exhibits” might not have been made a proper part of the record at any time. See
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“An
appellate court’s review is confined to those parts of the record made available to
it.”).
¶12 I pause to note that this failure to cite adequately to the record, and
to include citations that are of little to no use, is a significant deficiency and could
be sufficient, standing alone, to merit affirmance. State v. Lass, 194 Wis. 2d 591,
604, 535 N.W.2d 904 (Ct. App. 1995) (“We will not consider arguments that are
not supported by appropriate references to the record.”). It is not acceptable to
force the respondent and the appellate court to guess what portion or portions of
the record, if any, the appellant is basing an argument on.

No. 2025AP1802
6
¶13 Another major, related deficiency, as referenced above, is that no
transcripts are in the appellate record. To a large extent, Withey fails to cite to the
record because Withey has failed to ensure that necessary elements of the record
are available to this court, which he is required to do as the appellant.
¶14 Explaining further, missing are at least some of the arguments of the
parties and the reasoning of the circuit court bearing, so far as I can discern, on
each of the issues that Withey now purports to raise. It is the appellant’s
responsibility to ensure that the parties and the appellate court have an adequate
record from which to work. Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496
N.W.2d 226 (Ct. App. 1993). Absent relevant items from the record, an appellate
court will assume “that every fact essential to sustain the [circuit] court’s decision
is supported by the record.” Fischer v. Wisconsin Patients Comp. Fund, 2002
WI App 192, ¶6 n.4, 256 Wis. 2d 848, 650 N.W.2d 75; Austin v. Ford Motor Co.,
86 Wis. 2d 628, 641, 273 N.W. 2d 233 (1979) (appellate courts presume every fact
essential to the circuit court’s decisions are supported by the record).
¶15 Here, without the transcripts, I lack a basis to determine the full
nature of the motions and arguments that were presented to the circuit court by
both sides. I also lack a basis to determine the full nature of how the court handled
each of the purported issues. For example, the court might have made relevant
factual or credibility findings, which are circuit court functions to which this court
ordinarily applies deferential review. Or, the court might have pointed out
shortcomings in Withey’s many submissions or arguments, which he made over an
extended period, that could have driven, or at least contributed to, court rulings
that were based on the court’s discretionary power to control its docket. See Hefty
v. Strickhouser, 2008 WI 96, ¶31, 312 Wis. 2d 530, 752 N.W.2d 820; WIS. STAT.
§ 802.10(3) (addressing circuit court calendar management and establishing that a

No. 2025AP1802
7
court “may enter a scheduling order on the court’s own motion or on the motion of
a party.”).
¶16 For these reasons, I cannot meaningfully evaluate Withey’s
challenges to the circuit court’s decisions. Under the legal standard just cited, I
must assume both that the court sufficiently addressed the arguments and motions
that Withey made and that the missing transcripts reflecting arguments of the
parties and the court’s rulings support the court’s rulings. See Jocius v. Jocius,
218 Wis. 2d 103, 119, 580 N.W.2d 708 (Ct. App. 1998) (declining to address
whether the circuit court erred in denying appellant physical placement rights
“because in order to determine whether the [circuit] court erroneously exercised its
discretion with respect to this issue, we must be able to examine a full transcript of
the proceedings” and the appellant “failed to provide us with the transcript”).
¶17 To cite a representative example, as part of Withey’s argument that
he was in some sense unlawfully “entrapped” by the village or the County, he
asserts, “Trial testimony demonstrates there was no weed-commissioner
verification of noncompliance before enforcement.” Putting entirely to the side
whether Withey has identified a legal basis for reversal based on an entrapment-
related concept, by Withey’s own account there would be information that is
relevant to resolve this issue in a trial transcript that is not part of the record.
¶18 The circuit court’s July 21, 2025 letter, which to repeat makes
several pretrial rulings that Withey challenges, is a part of the record. But this
does not help Withey avoid the problems created by failing to include transcripts
in the record. As noted above, the letter references a pretrial hearing, and there is
no transcript for this hearing in the record that allows this court to understand how
much of the letter’s rulings were explained by the circuit court orally at that

No. 2025AP1802
8
hearing. Further, I observe that it is routine for circuit courts to modify or
elaborate on pretrial rulings when presiding at trial, as evidence is offered or
admitted and arguments of the parties are renewed or refined. Therefore, without
a trial transcript, I also have no way of knowing the extent to which the circuit
court may have modified or elaborated on the particular pretrial rulings that it
made in its July 21 letter.
¶19 In his reply brief on appeal, Withey confuses two doctrines. One
doctrine, referenced above, requires appellants to ensure that material portions of
the record are available on appeal. Under a distinct doctrine, appellate courts rely
on standards of review, one of which is de novo, meaning review without
deference to the ultimate rulings made by the circuit court. Withey fails to
recognize that, even when our standard of review is de novo, we need to
understand what the parties specifically argued, and which issues the circuit court
did and did not decide, and on what basis. Or, if there is an issue on which Withey
thinks that he has identified the full scope of argument by the parties and the full
scope of the circuit court’s ruling and its reasoning, that is not discernable to me
from his briefing.
¶20 On a related point, because the record is materially incomplete, I
cannot determine whether Withey gave the circuit court an opportunity to address
each issue that he raises on appeal, or instead whether he is raising issues for the
first time on appeal. See State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897
(Ct. App. 1995) (“We will not ... blindside [circuit] courts with reversals based on
theories which did not originate in their forum.”); State v. Caban, 210 Wis. 2d
597, 604, 563 N.W. 2d 501 (1997) (issues not presented to the circuit court will
generally not be considered for the first time on appeal).

No. 2025AP1802
9
¶21 In his reply brief on appeal, Withey contends that the County
“concedes that the existing written record is sufficient to identify when and how
Appellant raised the very issues Respondent now claims were unpreserved.”
Withey’s argument on this point is based on the fact that the County on appeal
cites to a pretrial pleading that Withey submitted to the circuit court, titled
“Defendant’s Response Brief and Motion to Dismiss.” But Withey’s target is too
narrow and the County has not made a pertinent concession. To be sure, Withey
raised various arguments and made various assertions in his pleadings in the
circuit court. But he fails to show that, on any of the issues that he now raises, this
court has a complete record of all arguments made by both sides and of the rulings
of the circuit court, including the circuit court’s reasoning in making those rulings.
¶22 Withey compounds all of the problems discussed to this point by
also consistently failing to apply pertinent law to relevant facts in coherent legal
arguments. It is not enough for Withey to state a concern, or even a recognizable
legal topic, and assert that the circuit court erred, leaving for this court to figure
out if the circuit court erred in a particular way given the pertinent facts and legal
authority. See Pettit, 171 Wis. 2d at 646 (declining to address arguments that
lacked “developed themes reflecting any legal reasoning”); M.C.I., Inc. v. Elbin,
146 Wis. 2d 239, 244-45, 430 N.W.2d 366 (Ct. App. 1988) (declining to consider
an “unexplained and undeveloped” argument). The following is only one
representative example. Withey asserts that, under the terms of WIS. STAT.
§ 66.0113(3), no person who is suspected of violating a village ordinance, as
Withey was here, may be taken into custody by someone with arrest authority
based on the person’s conduct when presented with an attempt to enforce the
ordinance unless there is, in Withey’s words, “a substantial and imminent threat to
public safety.” See § 66.0113(3) (describing options for alleged violators to

No. 2025AP1802
10
respond to citations issued to them, regarding appearances in court, cash deposits,
and the like). Withey makes this assertion without providing pertinent legal
authority. See Pettit, 171 Wis. 2d at 646 (declining to address “[a]rguments
unsupported by references to legal authority”).
¶23 Withey asserts that the County and the circuit court committed
“institutional failures” in failing to create “a written charging theory,” “factual
allegations describing the alleged offenses,” “a lawful-authority basis for arrest,”
and “written rulings on dispositive motions.” Withey appears not to understand
that the responsibility to create an adequate record for appeal rests with him as the
appellant. To the extent that he means to argue that the County, the circuit court,
or both were responsible for ensuring that additional documents were created and
included in the record, no such argument is developed in his briefing.
¶24 Due to all of these deficiencies, Withey fails to meet his burden to
demonstrate error by the circuit court on any of the issues that he purports to raise
on appeal challenging the adjudication of the two forfeitures. See Seltrecht v.
Bremer, 214 Wis. 2d 110, 125, 571 N.W.2d 686 (Ct. App. 1997) (stating that, on
appeal, “it is the burden of the appellant to demonstrate that the [circuit] court
erred”). This includes Withey’s demand that he is entitled to “full financial
compensation for all fines and fees paid.”
¶25 In sum, Withey’s briefing does not contain a single developed,
coherent legal argument for which the record reflects both that the parties made
particular arguments to the circuit court and that the court made a ruling, including
a record of all of the court’s reasoning on that issue.

No. 2025AP1802
11
CONCLUSION
¶26 For all of these reasons, I affirm the judgment of forfeitures and
conclude that Withey is not entitled to any of the relief that he seeks.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.