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Lolita Black v. City of Kenosha Housing Authority, 2009AP2368, Dist II, 12/30/09

court of appeals decision

Civil Notice of Appeal and Finality of Order
All final judgments or final orders entered after September 1, 2007, must include a statement that it is a final judgment or final order for purposes of appeal, but it is not “an absolute rule” that “an appeal cannot be filed from a judgment or order that disposes of the entire matter in litigation but does not include the statement that it is final for purposes of appeal,” ¶3. Instead, “courts will construe the document liberally in favor of preserving the right to appeal.”
In the case at hand, the notice of appeal would be untimely with respect to a first order, final for all appearances except that it did not contain a statement of its finality; and timely with respect to a later order that did contain this statement. Under the “liberal construction” principle, the appeal is deemed timely:

¶7        As required by Wambolt, we liberally construe the April 21, 2009 “Decision and Order” to not be the document from which an appeal of right could follow. [3] The notice of appeal references the June 11, 2009 “Final Order” which states that it is final for the purposes of appeal. The June 11, 2009 order establishes with clarity when the time to appeal was triggered. [4] The notice of appeal is timely filed from the June 11, 2009 order.

What about the long-standing principle that finality is determined by the order itself, not subsequent events? That principle isn’t involved, because the absence of a finality statement in the first document creates ambiguity, ¶7 n. 3.

What’s this got to do with SPD practice? Is the finality-statement even applicable to criminal appeals? Probably not (at least with respect to direct, defendant appeals), as discussed below. But even if the requirement is limited to civil cases, at least some impact may be felt on SPD practice, given that the following types of cases are civil:

  • Contempt. Matter of Contempt in State v. Simmons, 150 Wis.2d 178, 441 N.W.2d 308 (Ct. App. 1989).
  • § 974.06 motion, by express operation of § 974.06(6)
  • State’s appeal, § 974.05(1) (Here the requirement may be particularly acute. Generally, you want the favorable order entered as soon as possible, to begin the state’s clock running as soon as possible. If you don’t include a finality-statement in the order then you may have unwound the clock.)
  • Writ procedure. Revocations are reviewed by certiorari, probably the most common writ experienced by an SPD practitioner. State habeas has largely been supplanted by 974.06, but it still has its functions, for example in extraditions, State ex rel. Kenneth Onapolis  v. State, 2006 WI App 84

This is a non-exhaustive list; infrequently though SPD-appointed civil cases may cross your desk, when they do you’ll want to take into account the finality-statement requirement with respect to appealability.

And what about the typical criminal appeal, initiated by a defendant under § 809.30? The cases initiating the finality-statement requirement are Wambolt, 2007 WI 35, and Tyler v. The Riverbank, 2007 WI 33. They anticipate the existence of final orders that do not in fact contain a finality-statement, and “(i)n such cases, the appropriate course is to liberally construe documents in favor of timely appeals,” Wambolt, ¶46. Indeed, Black utilized that very idea to overlook the fact that the initial order was really final. In brief,  the overarching principle is that the court looks for ways to assume, not reject, jurisdiction. That idea is only strengthened in a criminal direct appeal, where there is a constitutional right to counsel. The court isn’t going to throw out an appeal on a technicality knowing that the case will simply be returned on a challenge to counsel’s failure to process it properly. Turning to the particulars: Wambolt dealt with “the issue of whether a memorandum decision may constitute a final order or judgment from which appeal may follow under Wis. Stat. § 808.03(1),” ¶13. That section incorporates § 807.11(2), which globally applies to all orders filed with the clerk of court. Nonetheless, the form of a judgment of conviction is specifically prescribed by § 972.13, and does not include a finality-statement. Not only is the finality of those judgments beyond question, but § 809.30 specifically authorizes “a notice of appeal from the judgment of conviction and sentence,” § 809.30(2)(j):in other words, no one is going to challenge appellate jurisdiction over direct criminal appeals that have merely followed statutory format. And, unlike the civil side, the criminal appellate process commences with a notice of intent to pursue postconviction relief, triggered by the sentence and judgment of conviction; whatever ambiguities plague civil orders, no such problem exists relative to judgments of conviction. But, again, there is that small slice of civil procedure applicable to SPD practice, and in those cases you’ll want to keep the finality-statement principle in mind.

Appellate Procedure