Sieverding appeals, pro se, from his conviction of four civil offenses related to his first-offense OWI in Verona. After being found guilty in municipal court, he notified that court he was appealing to the circuit court–but he failed to notify the plaintiff in the action, the City of Verona. The City, though, was notified of the appeal when the municipal court sent it a copy of the notice of appeal via email. In the circuit court the city sought, and received, dismissal for lack of service, and Sieverding appeals.
The case calls for interpretation of Wis. Stat. § 800.14(1), which describes circuit court appellate jurisdiction over the municipal courts. It says that the “appellant shall appeal by giving the municipal judge and other party written notice of appeal within 20 days after the judgment or decision.”
So did the municipal clerk’s email to the City constitute the “appellant … giving … written notice”? The court of appeals says no. It rejects the argument that there was no prejudice to the city, because § 800.14(1), unlike, for example, Wis. Stat. § 893.80(1d)(a), does not excuse lack of notice where prejudice is absent. (¶12).
The court also turns back two related arguments that the municipal clerk acted as an intermediary by which Sieverding’s written notice was transmitted to the city, holding that allowing this would render superfluous the requirement to serve the “other party.” (¶¶10-11).
If the clerk hadn’t emailed the city, the court of appeals’ reasoning would be airtight. But given that the clerk did, and the statute doesn’t prescribe any particular method for delivering notice, why does it matter that the city received the notice of appeal via the clerk, rather than, for example, via the U.S. Postal Service, Snapchat, or carrier pigeon? Is there some unstated requirement that the appellant intend the other party receive notice? Sieverding’s briefs aren’t online so we don’t know if he made this type of argument.
Sieverding also argues that the city waived any objection to lack of notice by appearing in the circuit court appeal, but the court holds that the city’s motion to dismiss properly raised the issue:
Where a party has properly raised an objection to jurisdiction, the party may participate in pretrial hearings without waiving the objection to jurisdiction. City of Milwaukee v. Mallett, No. 2010AP400, unpublished slip op. (Wis. App. Aug. 10, 2010); see also Dietrich v. Elliott, 190 Wis. 2d 816, 825, 528 N.W.2d 17 (Ct. App. 1995) (quoting Danielson v. Brody Seating Co., 71 Wis. 2d 424, 431, 238 N.W.2d 531 (1976)) (“If a defendant has properly raised his objection to jurisdiction in his answer, he may later take part in pretrial discovery or otherwise contest the merits of the action without waiving his objections to personal jurisdiction.”).