COURT OF APPEALS DECISION DATED AND FILED July 28, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
2009AP2890 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Town of
Plaintiff-Respondent, v. Charles F. Hibbard, Defendant-Appellant. |
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APPEAL from an order of the
circuit court for
¶1 SNYDER, J.[1] Charles F. Hibbard appeals from a circuit
court order dismissing his appeal from a municipal court judgment and his
request for a
de novo jury trial. We understand
Hibbard to contest the circuit court’s determination that he did not comply
with statutory procedure and thereby deprived the circuit court of appellate
jurisdiction. The circuit court remanded
the matter to the municipal court for reinstatement of the judgment of
conviction. Hibbard contends that the circuit court erred and he appeals. We hold that Hibbard’s failure to comply with
statutory procedure for invoking the circuit court’s appellate jurisdiction
required dismissal.
¶2 On January 11, 2009, the Town of Oconomowoc Police Department
cited Hibbard for operating while intoxicated, defective equipment, and issued
a notice of intent to revoke his operating privilege for refusal to submit to a
chemical blood test contrary to
¶3 The Lake Country Municipal Court addressed Hibbard’s motions on June 26.[3] The court denied the motion to dismiss and found Hibbard guilty of OWI and driving with a defective stop lamp. The court dismissed the refusal charge. On July 1, 2009, the Lake Country Municipal Court received the Town’s appeal from the municipal court’s dismissal of the refusal charge and on July 13, the municipal court received Hibbard’s appeal from the balance of the judgment. Both parties sought a new trial in circuit court.
¶4 Hibbard then filed a motion to dismiss the Town’s appeal and the circuit court held a motion hearing on October 28, 2009. At the hearing, it was determined that while both parties filed their appeals with the circuit court in a timely fashion, neither had served the other party with notice. Because the parties had failed to comply with the notice requirement of Wis. Stat. § 800.14(1),[4] the court held that it lacked jurisdiction. The circuit court remanded the matter to the municipal court “for entry and reinstatement of the Judgment of Conviction.” Hibbard appeals.
¶5 Hibbard’s primary arguments on appeal are (1) that the circuit court improperly considered whether it had jurisdiction because the issue was not raised by motion, and (2) that he, as a pro se litigant, “should be held to a less stringent standard than a member of the Wisconsin Bar Association would be and should be allowed a certain amount of latitude in regard to this matter.” Hibbard concedes that he failed to comply with Wis. Stat. § 800.14(1) by failing to serve notice of his appeal on the Town, but he excuses his failure by asserting that “[n]owhere on [the notice of appeal] form is there an instruction directing or informing Hibbard that a copy of the Notice of Appeal was to be forwarded to the opposing party.”
¶6 The Town responds to Hibbard’s arguments and further asserts that we should dismiss Hibbard’s appeal for his failure to comply with the rules of appellate procedure contained in Wis. Stat. Rule 809.19; specifically, Hibbard’s failure to submit an appellate brief that complies with the rules. See Wis. Stat. Rule 809.83(2) (penalities for noncompliance with rules of appellate procedure include dismissal). We agree that Hibbard failed to comply with relevant rules; however, we dismiss on other grounds.
¶7 We begin with the substantive issue on appeal; that is,
whether the circuit court properly considered and resolved the question of its
jurisdiction over Hibbard’s appeal. Hibbard
takes the position that jurisdiction cannot be considered absent a motion by a
party. His view is incorrect, however,
because the issue of jurisdiction is always a proper question even if raised
sua sponte by the court.
¶8 The question of jurisdiction at issue here is specifically
appellate jurisdiction, which is
distinguishable from subject matter or personal jurisdiction. The Wisconsin
Constitution provides in relevant part: “Except as otherwise provided by law, the
circuit court shall have original jurisdiction in all matters civil and
criminal within this state and such appellate
jurisdiction in the circuit as the
legislature may prescribe by law.” Wis.
Const. art. VII, § 8 (emphasis added). Accordingly, a circuit court’s
jurisdiction over an appeal from a municipal court “can only be acquired ...
under the rules of appealability established by the legislature.” Walford v. Bartsch, 65
¶9 Wisconsin Stat. §
800.14 grants circuit courts appellate
jurisdiction over municipal court decisions.
It states that an “appellant shall appeal by giving the municipal
judge and other party written notice
of appeal within 20 days after judgment.”
Sec. 800.14(1) (emphasis added). In
this case the circuit court was without jurisdiction to conduct a trial de novo
under § 800.14(1) because both parties failed to give the required notice
of appeal to the opposing party. When a
specific method of review is prescribed by statute, that method is exclusive. Sewerage Comm’n of
¶10 We reject Hibbard’s contention that he should not be held to
the same standard as a licensed attorney. Hibbard’s self-representation came with the
responsibility to comply with relevant rules of procedural and substantive law.
See
Waushara
County v. Graf, 166
¶11 Our jurisdiction in an
appeal such as this is confined only to the jurisdictional question itself. See Ryde
v. Dane
By the Court.—Appeal dismissed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Miranda
v.
[3] The record contains exhibits from a proceeding on June 26, 2009. No transcript was provided with the record. For purposes here, we accept the Town’s version of events at the hearing. Hibbard offers no alternative version.
[4]