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Court of appeals takes hard line on appeals from municipal court decisions

City of Port Washington v. Sandra J. Koziol, 2021AP449-450-FT, 10/6/21, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

Each year, Wisconsin’s municipal courts resolve close to half of a million cases, including traffic offenses, OWIs, and other quasi-criminal matters. See data here. A party aggrieved by a municipal court judgment has a statutory right to appeal it. This unpublished opinion resolves an issue of first impression regarding the procedure for appealing municipal court judgments in a way that restricts that right and violates the statute.

Koziol appealed her municipal court OWI convictions to the circuit court by filing a notice of appeal with the court and, she says, sending a copy to counsel for the City of Port Washington by U.S. mail. The City attorney moved to dismiss claiming that he never received the notice and that Koziol failed a requirement to file an Affidavit of Mailing with her notice of appeal.

The circuit court granted the City’s motion. Koziol moved for reconsideration, attached an Affidavit of Mailing, and cited §806.07, which governs motions for relief from judgment. The circuit court denied reconsideration because Koziol had not filed the Affidavit of Mailing in response to the motion to dismiss.

The court of appeals affirmed. It held: “to confer jurisdiction on the circuit court over an appeal from a municipal court’s decision” under this statute, the appellant must comply with §800.14 . Opinion, ¶10.  It continued: “We consider here whether Koziol perfected her appeal by giving timely written notice to the City as required by Wis. Stat. §800.14 . . .” (Emphasis supplied).

The court of appeals acknowledged that “there is no obligatory method of delivery of the written notice required by Wis. Stat.  §800.14.” But to satisfy the statute Koziol was still required to establish that she actually gave written notice to the City. Opinion, ¶14. When the City moved to dismiss and submitted an affidavit of nonservice, Koziol merely responded with her attorney’s cover letter attaching her notice of appeal.  The letter was not authenticated per §909.01, and it was not accompanied by an “affidavit of mailing.” Opinion, ¶16.

Section 800.14 provides in part:

(1) . . . The appellant shall appeal by giving the municipal court and other party written notice of appeal and paying any required fees within 20 days after the judgment or decision. No appeals may be taken from default judgments.

(2m) upon receipt by the municipal court of the notice of appeal and any required fees, and if a trial has been held, after the 20 day time period under sub. (4) has based, the appeal is perfected.

Note that the statute does not require a party to serve a written notice of appeal in any particular manner. In fact, the court of appeals has held that it may even be served by email. Village of Thiensville v. Conor B. Fisk, 2015AP576-FT (Ct. App. Aug. 26, 2015)(unpublished).

Note also that §800.14(2m) plainly says that appeal is “perfected” when the circuit court receives the notice of appeal not when the respondent is served with it. There does not appear to be any dispute that the circuit court received the notice of appeal, so Koziol’s appeal was in fact perfected. The circuit court had jurisdiction.

The only real question was what to do about the City’s allegation that it never received a copy of the notice of appeal? Section 800.14 is silent on the subject. There do not appear to be any cases on point.

A party appealing to the court of appeals must also serve a notice of appeal on her opponent. Before efiling, the filing of the notice of appeal constituted certification that service had been made. The failure to serve the notice of appeal did not deprive the court of appeals of jurisdiction or require dismissal of the appeal. The most likely sanction was that the court of appeals would order the appellant to serve the notice and maybe pay a monetary penalty.  Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin, §5.15 (2011). So why clobber a person trying to appeal a municipal court judgment?

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