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Court of appeals issues important decision on fumbled e-filings

State v. Ayodeji J. Aderemi, 2023 WI App 8; case activity (including briefs)

This appeal concerns a problem many will encounter. An alleged attempt to e-file a document apparently failed. Here, the document was the State’s Information. Aderemi argued that the fumble caused the State to miss its filing deadline, so under §971.01(2) the circuit court had to dismiss the case without prejudice. In a split decision, recommended for publication, the majority (White and Brash) ruled for the State. The dissenter (Dugan) faults the majority for ignoring important parts of Wisconsin’s e-filing statute. He would reverse and remand for an evidentiary hearing.

On August 6, 2018, the court held an arraignment for Aderemi. Defense counsel agreed that the DA provided him a paper copy of the Information.

At an October 2nd bail bond hearing the clerk announced that no Information had been filed in CCAP. There was an entry saying it was filed but no document attached to the entry. The DA asked trial counsel to acknowledge that he had received the Information within the 30-day filing deadline, otherwise the court would lack jurisdiction. Defense counsel said he had the paper copy from the prelim, and it wasn’t file-stamped. Opinion, ¶4.

On December 7th the court held a final pretrial. The Information was not discussed. But afterward the Information had a “filed December 7, 2018 ” stamp on it. Opinion, ¶5.

On January 7th, the first day of trial, defense counsel objected. The court said that its clerk had looked into the problem. The DA “filed” the information on August 6th, but the clerk did not post it to the docket at that time.  Opinion, ¶7. The trial proceeded, and the jury convicted Aderemi of sexual assault.

On appeal, Aderemi argued that the State violated the 30-day filing deadline in §971.01(2), so the circuit court should have dismissed the case without prejudice.

The majority (White joined by Brash) held that the State filed the Information in compliance with the law. The irregularity affected only the form, so it wasn’t invalid per §971.26. Furthermore, the e-filing statute, like Wisconsin’s paper filing law, says the presumed “filing date” for a document is the date the user submitted it, not the date the clerk accepted it.   Opinion, ¶20 (acknowledging caveats to this rule).

The majority said no evidentiary was necessary because the trial court’s statements regarding what the clerk learned were essentially historical findings of fact that had to be affirmed unless clearly erroneous. Plus Aderemi wasn’t prejudiced. Opinion, ¶¶23-30.

Not so fast, say Judge Dugan. An evidentiary hearing is indeed necessary because it is unclear that an Information was in fact e-filed. And if it was e-filed, it was stamped as being e-filed on December 7th. Dugan also faulted the majority for relying cases governing paper-based courts when they should have followed applicable parts of §801.18 governing e-filing.

Why is Dugan skeptical about whether the DA actually submitted the Information to the court? Because if she did, then per the version of §801.18(4)(b) and (c) in effect in 2018, the e-filing system would have issued a confirmation that a document had been submitted, and if the clerk had accepted the document for filing, the clerk would have issued a confirmation to serve as “proof of filing.” However, none of this information is in the record. Dissent, ¶¶32-38.

What’s more, the “entry” relied upon by the majority was a note that the circuit court clerk entered in the docket. It was not an “entry” generated by the e-filing system. Dissent, ¶48.

And Dugan makes another good point. The e-filing system records the date and time that a document is submitted. So if the document was submitted on August 6th, how was it stamped as accepted for filing on December 7th? Dissent, ¶49.

The e-filing statute acknowledges that technical failures can occur. When they cause a user’s filing to be untimely, the statute provides a process whereby the user may seek relief. The process requires the user to prove that the problem was caused by the e-filing system. §801.18(16)(a)1. Dissent, ¶55. The State did not follow that process in this case.

Bottom line: Dugan would reverse and remand for an evidentiary hearing to determine whether the Information in the e-filing system was properly filed and if so when it was filed. Also, don’t be surprised if SCOW weighs in on this case.

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