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Dismissal of pro se appeal affirmed for lack of service

City of West Allis v. Brandon J. Michaels, Appeal No. 2013AP710, District 1, 11/13/13; (one-judge decision, ineligible for publication); case activity

Michaels tried to appeal a municipal court conviction for disorderly conduct to the circuit court, per Wis. Stat. § 800.14.  He consulted the clerk of court and followed all of the instructions he was given.  That is, he filed a notice of appeal with the circuit court and served another one upon the City of West Allis Police Department.  “Busted!” said the City Attorney’s motion to dismiss, “you should have served us not the police.”  [Okay, that’s paraphrasing.]  The point is the circuit court dismissed Michaels’ attempted appeal and the court of appeals affirmed on the grounds that Michaels’ failure to serve the City Attorney deprived the circuit court of jurisdiction.  Slip op. ¶13.

“Ho hum,” you say?  Maybe.  Maybe not.  A little digging revealed that this decision literally cuts and pastes  a couple of pages of legal analysis from prior court of appeals’ decisions dismissing pro se appeals involving the same procedural misstep.  See e.g., City of Milwaukee v. Hall, Appeal No. 2012AP875-876§ (12/4/12),   They all rely on § 800.14 which says the appellant shall appeal by giving the municipal judge and other party written notice of appeal within 20 days after the judgment or decision” and, with great emphasis, Walford v. Bartsch, 65 Wis. 2d 254, 222 N.W.2d 633 (1974). Walford doesn’t involve § 800.14 or a pro se litigant.  In fact it appears to pre-date the restructuring of Wisconsin’s court system.  Sure it makes sense that failing to file a notice of appeal in the right court is jurisdictional, but when a pro se litigant serves the wrong unit of the “other party” does that really go to jurisdiction?  Federal courts seem more sensitive to the plight of pro se litigants.  See e.g. Friction v. Oconto County, ASCA, USDA, 723 F. Supp. 1312, (E.D. Wis. 1989) (pro se litigant’s claim not dismissed for improper service; justice required instructing him on how to do it properly).

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