### COURT OF APPEALS DECISION DATED AND FILED
December 21 , 2022

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP 668

- CR Cir. Ct. No. 2021CM699 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
K EVIN R ICHARD R ADDEMANN ,
D EFENDANT - A PPELLANT .

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

¶ 1 NEUBAUER, J. 1 Kevin Richard Raddeman n 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 W IS

. S TAT

. § 752.31(2)( f ) (2019

- 20). All references to the Wisconsin Statutes are to the 2019

- 20 version unless otherwise noted.No. 2022AP 668

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2 count of operating while intoxicated, third offense. Raddemann was arrested after a City of Hartford police officer stopped his vehicle for violat ing a city ordinance and detected signs of intoxication. Radde mann 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 argumen t in the circuit court
but made no effort to serve the a ttorney g eneral or add the City of Hartford as a party as he was required to do under W IS

. S TAT

. § 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. o n 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 movin g northbound through Pleasant Hill C emetery. By city ordinance , most persons are prohibited from being in the cemetery outside of daylight hours

. See H ARTFORD , W IS ., M UNICIPAL C ODE § 27.13(1) (1997) (“No person other than cemetery employees or other poli ce 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, turn ed right out of the cemetery, and beg a n 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

- Chapte r

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- PDF

.No. 2022AP 668

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3 it was not a police vehicle and did not resemble one of the vehicles belonging to
the Hartford Parks and Recreation D epartment , which is in charge of the cemetery

. Albea pulled t he 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 ad ditional signs of intoxication, Albea arrested him.

¶ 5 Raddeman n 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 conc entration, 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. C ONST

. amend. IV. The same protection is provided by article I, section 11 of the Wisconsin Constitution. See W IS

. C ONST

. art. I, § 11.No. 2022AP 668

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4 had reasonable suspicion to believe that Ra ddemann was in the cemetery in violation of the city ordinance

. ¶ 6 Raddemann filed a motion for reconsideration, raising a new argument : The ordinance i s unconstitutionally vague because the removal of the gates at the entrance off of H ighway 60 some time before his arrest ma k e s 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 untim ely 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
W IS

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. § 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
W IS

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. § 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 municipali ty 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).No. 2022AP 668

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5 Sec. 806.04(11). T he statute’s requirements apply even where no declaratory judgment is sought , s ee Brown C ou nty Human Serv ice s 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 d etermination of the rights sought to be
deter mined,” 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 par ticular 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 Office r 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 ordi nance 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 predic ated on his assertion that the ordinance i s unconstitutionally vague, he was obliged to notify the attorney general and seek join der of the City of Hartford as a party so that it could , if it wished, defend the const itutionality of the
ordinance.

¶ 9 Raddemann points to nothing in the record showing that he complied
with W IS

. S TAT

. § 806.04(11). Instead, he emphasizes that he is not asserting an affirmative constitutional claim seeking damages but rather is raising his
consti tutional challe nge as part of his defense to criminal charge s

. Raddemann argues that an exception to § 806.04(11) exists for such defensive assertions ofNo. 2022AP 668

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6 unconstitutionality, b ut the cases he cites do not support his argument

. In Ocean Accident & Guarantee Corp. v. Pou lsen , 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. Nicola zzi , 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 W IS

. S TAT

. § 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 W IS

. S TAT

. R ULE 809. 23(1)(b)4

.