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Notice of Appeal – Contents: Chs. 54 (Guardianship) and 55 (Protective Placement) = 3-Judge Panel – Default for Combined 1-Judge and 3-Judge Panel Appeal = 3-Judge

Waukesha County v. Genevieve M., 2009 WI App 173
For Genevieve M.: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding: Although a ch. 54 guardianship appeal is decided by a 3-judge and ch. 55 protective placement by a 1-judge panel, when the 2 were commenced and decided under a single trial court case number, the appeal will be decided by a 3-judge panel:

¶5        The plain language of Wis. Stat. § 752.31(1) establishes that all appeals before the court of appeals shall be decided by a panel of three judges. Section 752.31(3) merely provides exceptions to the general rule for the types of cases listed in § 752.31(2). Exceptions are to be strictly construed and applied. See Lang v. Lang, 161 Wis. 2d 210, 224, 467 N.W.2d 772 (1991). Accordingly, all doubts about whether an appeal should be decided by a three-judge panel or one court of appeals judge should be resolved in favor of the default rule that a three-judge panel be utilized. See Wisconsin Fertilizer Ass’n, Inc. v. Karns, 52 Wis. 2d 309, 317-18, 190 N.W.2d 513 (1971) (with regard to exemptions to safety statutes all doubts should be resolved in favor of the general provision rather than the exception). Thus, where an appeal involves the type of case specified in § 752.31(2)(d), and also involves a case which § 752.31(1) requires to be heard by a three-judge panel, the appeal will be assigned for decision by a three-judge panel. This is consistent with this court’s practice of having the chief judge order a one-judge appeal to be decided by a three-judge panel when the appeal is consolidated with an appeal required by statute to be heard by a three-judge panel. See Wis. Stat. Rules 809.10(3), 809.41(3). This does not change that appeals which involve only a protective placement order or other order confined to a proceeding under Wis. Stat. ch. 55, such as a termination petition under Wis. Stat. § 55.17 or annual review under Wis. Stat. § 55.18, will be assigned for decision by one court of appeals judge.

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