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NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
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No. 93-2546-CR
STATE OF WISCONSIN : IN SUPREME COURT
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State of Wisconsin, Plaintiff-Appellant-Cross
Respondent-Petitioner, v. Wandell Lee, Defendant-Respondent-Cross
Appellant. |
FILED JAN 17, 1996 Marilyn L. Graves Clerk
of Supreme Court Madison,
WI |
State of Wisconsin,
Plaintiff-Appellant-Cross
Respondent-Petitioner,
v.
Thomas Casey,
Defendant-Respondent-Cross
Appellant.
REVIEW of a decision of the Court of
Appeals. Vacated in part.
SHIRLEY
S. ABRAHAMSON, J. This is a review of a published decision of
the court of appeals, State v. Lee, 192 Wis. 2d 260, 531 N.W.2d 351
(Ct. App. 1995), affirming the orders of the circuit court for Milwaukee
County, John A. Franke, Judge. With
leave of the court of appeals, the state had appealed a nonfinal circuit court
order directing the Wisconsin State Crime Laboratories to conduct additional
analysis requested by the defendants.
With leave of the court of appeals, the defendants Wandell Lee and
Thomas Casey had cross-appealed from nonfinal circuit court orders denying
their motions to dismiss the prosecutions.
Before
the court of appeals issued a decision, the state filed a notice of voluntary
dismissal of its appeal pursuant to Wis. Stat. § (Rule) 809.18 (1993-94).[1] The court of appeals nevertheless decided
the merits of both the state's appeal and the defendants' cross-appeal,
affirming the orders of the circuit court.
The
limited issue before this court is whether the court of appeals may refuse to
dismiss an appeal when an appellant notifies the court of appeals of its
voluntary dismissal pursuant to Wis. Stat. § (Rule) 809.18 prior to the
court of appeals' issuance of a decision on the merits of the appeal.[2] We conclude that under Rule 809.18, the
court of appeals must dismiss an appeal when an appellant files a notice of
voluntary dismissal before the court of appeals issues its decision on the
appeal. We therefore vacate that part
of the decision of the court of appeals relating to the state's appeal.
The
procedural history relating to the state's attempt to dismiss its appeal in the
instant case is somewhat tangled but not in dispute.
On
December 12, 1994, after the parties had filed their briefs with the court of
appeals but before the cases had been submitted for decision, the state filed
with the court of appeals a document entitled "Notice of Voluntary
Dismissal of Appeal by State of Wisconsin." Although the title of the document contains the word
"notice" and the body of the document refers to Wis. Stat.
§ (Rule) 809.18, the initial and concluding paragraphs of the document are
phrased not in terms of the state's notice of voluntary dismissal but in terms
of the state's motion for voluntary dismissal.
The defendants opposed the dismissal.
On
December 22, 1994, Judge Ted E. Wedemeyer dismissed the state's appeal pursuant
to Wis. Stat. § (Rule) 809.18.
Despite the dismissal, the court of appeals submitted the case for
decision on January 3, 1995. On
February 28, 1995, more than 60 days after Judge Wedemeyer had dismissed the
state's appeal, a three-judge panel of the court of appeals composed of Judges
Wedemeyer, Ralph Adam Fine and Charles B. Schudson issued a decision authored
by Judge Wedemeyer resolving the merits of both the state's appeal and the
defendants' cross-appeal.
Subsequently,
by order of March 6, 1995, the court of appeals asked the parties to submit
simultaneous legal memoranda addressing whether the court of appeals had
properly reached the merits of the state's voluntarily dismissed appeal on the
issue of crime lab retesting.
By
order dated March 30, 1995, the court of appeals stated that it had
"inadvertently" affirmed the state's notice of voluntary dismissal
and that, "[a]s a result," it was invoking "its inherent power
to correct this error" by vacating Judge Wedemeyer's December 22 order
dismissing the state's appeal.
On
April 3, 1995, the court of appeals revised its decision, adding a footnote
stating that "[b]ecause the issue on appeal is one of statewide concern,
we invok[e] our inherent power to vacate the December 22 order and exercis[e]
our discretionary authority to deny the State's motion for voluntary
dismissal." Lee, 192
Wis. 2d at 264 n.1. The state
petitioned this court for review; this court accepted review on the issue of
whether the court of appeals is authorized to retain jurisdiction of an appeal
after an appellant has voluntarily dismissed the appeal.
The
starting point for our analysis is Wis. Stat. § (Rule) 809.18, which
empowers an appellant to dismiss an appeal by filing a notice of
dismissal. The rule provides as
follows:
809.18 Rule
(Voluntary dismissal). An appellant
may dismiss an appeal by filing a notice of dismissal. The notice must be filed in the court or, if
not yet docketed in the court, in the trial court. The dismissal of an appeal does not affect the status of a
cross-appeal or the right of a respondent to file a cross-appeal.
The
language of the rule clearly places the decision of voluntary dismissal with
the appellant; it makes no reference to the court of appeals' authority to
reject or deny a notice of voluntary dismissal.
This
meaning of Wis. Stat. § (Rule) 809.18 is reinforced by the accompanying
1978 Judicial Council Committee note.
The court has frequently referred to drafters' notes for assistance in
interpreting the rules.[3]
The
committee note explains that an appellant may dismiss an appeal "without
approval of the court or the respondent" because the dismissal does
not affect the respondent who has filed or intends to file a cross-appeal
(emphasis added).[4]
The
committee note further explains that Wis. Stat. § (Rule) 809.18 modifies
Rule 42 of the Federal Rules of Appellate Procedure.[5] We can therefore glean insight about Rule
809.18 by examining Fed. R. App. P. 42.
In
contrast to our Wis. Stat. § (Rule) 809.18, Fed. R. App. P. 42
provides that when an appellant moves for voluntary dismissal, an appeal may be
dismissed "upon such terms as may be agreed upon by the parties or fixed
by the court."[6] Federal case law has consistently interpreted
this language as granting the federal court of appeals broad discretion in
ruling on an appellant's motion for dismissal.[7] In addition to the federal courts of
appeals' discretionary authority to dismiss on the motion of an appellant,
Federal Rule 42(b) provides for mandatory dismissal when all the parties to an
appeal agree to the dismissal. Upon
agreement of all the parties, "the clerk of the court of appeals shall
enter the case dismissed." Fed. R.
App. P. 42(b)
A
comparison of Wis. Stat. § (Rule) 809.18 and Fed. R. App. P. 42(b)
clearly demonstrates that in the Wisconsin court of appeals, unlike in the
federal court of appeals, the consent of neither the court nor the parties is
required when an appellant voluntarily chooses to dismiss an appeal before the
court of appeals issues a decision.
In
an effort to counter the state's reliance on the language and legislative
history of Wis. Stat. § (Rule) 809.18, the defendants raise several
arguments in support of the court of appeals' refusal to dismiss the state's
appeal. First, the defendants assert
that the state did not properly give notice of a voluntary dismissal pursuant
to Rule 809.18 but instead filed a motion seeking the court of appeals'
approval of the dismissal. Because the
state requested dismissal through a motion rather than the notice prescribed by
Rule 809.18, the defendants claim that the state has conferred upon the court
of appeals the authority to refuse its request for dismissal, thus waiving any
right to unilateral dismissal that it might have had under Rule 809.18.
The
state concedes, as it must, that its use of motion language in its notice of
voluntary dismissal document was unartful.
But the state argues, and we agree, that its document clearly relies on
Wis. Stat. § (Rule) 809.18. We
conclude, as did Judge Wedemeyer's dismissal order, that the state's notice of
voluntary dismissal was intended to obtain an automatic dismissal pursuant to
Rule 809.18. The mere fact that the
document was labelled a motion does not mean that the state could thereby vest
a power in the court of appeals which the court of appeals does not have. Nor could the court of appeals thereby
profess power over a voluntary dismissal in direct contravention of the
language of Rule 809.18 itself.
Neither the state nor the court of appeals has the power to change Rule
809.18.
The
defendants' second argument is that Wisconsin circuit courts have the power to
grant or refuse a motion to dismiss "in the public interest" and that
the court of appeals should be accorded a similar power. The defendants thus analogize the court of
appeals' power of dismissal to that of the circuit court.
A
circuit court can refuse to terminate a criminal prosecution or a civil
action. See, e.g., State v.
Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 160 (1978) (criminal prosecution);
Russell v. Johnson, 14 Wis. 2d 406, 413, 111 N.W.2d 193 (1961)
(civil action). These cases, however,
do not pertain to Wis. Stat. § (Rule) 809.18, and they are not applicable
to the court of appeals. An appellant
who voluntarily dismisses an appeal is returned to the position occupied prior
to appeal and is bound by the order or judgment appealed from. Were plaintiffs allowed to voluntarily
dismiss complaints without leave of the circuit court, the resulting absence of
such a judgment or order could potentially compromise both judicial economy and
fairness by prolonging a matter that might otherwise have been resolved.[8] It is consequently left to the sound
discretion of the circuit courts to determine whether such dismissals might
compromise the interests of the parties or the public.
Although
it is arguable that the protection of the public interest might militate
against dismissing some appeals, in adopting Wis. Stat. § (Rule) 809.18
this court has determined that both fairness to the appellee and judicial
economy outweigh any public interest in continuing an appeal which an appellant
wishes to dismiss.
Pointing
to occasions on which this court has refused to dismiss a case at the request
of one or both parties, the defendants also try to establish an analogy between
the practice of this court and the court of appeals. See, e.g., State ex rel. Richards v. Foust, 165
Wis. 2d 429, 440a-440b, 477 N.W.2d 608 (1991), 480 N.W.2d 444 (1992)
(advising litigants of the court's procedure upon a filing of a notice of
dismissal).[9] For different reasons, this analogy also
fails.
The
rules of appellate practice applicable to the court of appeals are not always
applicable to this court, which functions primarily as a law-developing
court. Partly as a consequence of the
different functions served by Wisconsin's two appellate courts, Wis. Stat.
§ (Rule) 809.63 provides that the rules governing procedure in the court
of appeals are applicable to proceedings in the supreme court "unless
otherwise ordered by the supreme court in a particular case." Hence the defendants' analogy between their
case and Foust‑‑in which the court relied on Rule 809.63 to
depart from Wis. Stat. § (Rule) 809.18 and decline the parties'
stipulation to dismiss this court's review‑‑is misplaced.
The
defendants' third argument relies upon State v. Thiel, 171 Wis. 2d
157, 491 N.W.2d 94 (Ct. App. 1992), in which the court of appeals invoked its
authority under Wis. Stat. § (Rule) 809.24 (allowing reconsideration) to
reinstate an appeal that had previously been voluntarily dismissed under Wis.
Stat. § (Rule) 809.18.
In
Thiel, a criminal case, the state appealed the circuit court's order
suppressing the accused's statement and the accused cross-appealed from both
the circuit court's determination that his confession was voluntary and two
other orders. Three weeks after the
accused filed his cross-appeal and before briefing had begun, the state filed a
notice of voluntary dismissal and a motion to dismiss the accused's
cross-appeal, arguing that the dismissal of its appeal mandated dismissal of
the cross-appeal as well.
The
court of appeals dismissed the state's appeal but denied the state's motion to
dismiss the cross-appeal. The state
then moved to reinstate its voluntarily dismissed appeal. While noting that it was "loathe to
condone" the state's manipulative tactics, Thiel, 171 Wis. 2d
at 159, the court of appeals granted the state's motion to reconsider its prior
dismissal order, citing Wis. Stat. § (Rule) 809.24. Id.[10]
The
state's explicit request to rescind its voluntary dismissal distinguishes Thiel
from this case. In Thiel the
appellant itself asked for a withdrawal of its prior voluntary dismissal, a
situation not covered by Wis. Stat. § (Rule) 809.18. This case, however, is expressly governed by
Rule 809.18. The court of appeals
cannot unilaterally rewrite that rule, thereby frustrating an appellant's
exercise of the prerogative which that rule confers.[11]
For
the reasons set forth we conclude that the court of appeals must dismiss an
appeal when an appellant files a notice of voluntary dismissal pursuant to Wis.
Stat. § (Rule) 809.18 before the court of appeals issues a decision on the
appeal. Upon dismissal of an appeal,
the appellant is returned to the same position occupied before the appeal was
initiated.
By
the Court.—That part of the decision of the court of appeals
relating to the state's appeal is vacated.
SUPREME COURT OF WISCONSIN
Case No.: 93-2546-CR
Complete Title
of Case: T.C. #F-931864
State of Wisconsin,
Plaintiff-Appellant-Cross
Respondent-
Petitioner,
v.
Wandell Lee,
Defendant-Respondent-Cross
Appellant.
______________________________
State of Wisconsin,
Plaintiff-Appellant-Cross
Respondent-
Petitioner,
v.
Thomas Casey,
Defendant-Respondent-Cross
Appellant.
_________________________________________
REVIEW OF A DECISION OF THE COURT OF
APPEALS
Reported at: 192 Wis. 2d 260, 531 N.W.2d 351
(Ct. App. 1995)
PUBLISHED
Opinion Filed: January 17, 1996
Submitted on Briefs:
Oral Argument: November 30,
1995
Source of APPEAL
COURT: Circuit
COUNTY: Milwaukee
JUDGE: John A. Franke
JUSTICES:
Concurred:
Dissented:
Not Participating:
93-2546-CR State v. Lee/Casey
ATTORNEYS: For the plaintiff-appellant-cross
respondent-petitioner the cause was argued by James M. Freimuth,
assistant attorney general, with whom on the briefs was James E. Doyle,
attorney general.
For the defendant-respondent-cross
appellants there was a brief by Robert R. Henak and Shellow, Shellow
& Glynn, S.C., Milwaukee and oral argument by Robert R. Henak.
[2] Wis. Stat. § (Rule) 809.18 provides as
follows:
809.18 Rule (Voluntary dismissal). An appellant may dismiss an appeal by filing
a notice of dismissal. The notice must
be filed in the court or, if not yet docketed in the court, in the trial court. The dismissal of an appeal does not affect
the status of a cross-appeal or the right of a respondent to file a
cross-appeal.
[3] State v. Williquette, 190
Wis. 2d 677, 692-93, 526 N.W.2d 144 (1995) (stating that although a
Judicial Council Committee note "is not controlling authority, it is
certainly persuasive" in determining the meaning of a rule or statute); State
v. Guck, 176 Wis. 2d 845, 856, 500 N.W.2d 910 (1993) (relying on a
Judicial Council Committee note as part of the legislative history to be used
in determining the meaning of a statute); State v. Hanson, 149
Wis. 2d 474, 480-83, 439 N.W.2d 133 (1989) (relying on a Judicial Council
Committee note in interpreting the Wisconsin Rules of Evidence); State v.
Krause, 161 Wis. 2d 919, 926-27, 469 N.W.2d 241 (Ct. App. 1991)
(relying on a Judicial Council Committee note as one of the "extrinsic
aids to help discern legislative intent"); see also Milwaukee
County v. DILHR, 80 Wis. 2d 445, 452, 259 N.W.2d 118 (1977)
(legislative history of a statute includes reports of committees reporting to
the legislature, which "can be valuable interpretive aids"); In re
Estate of Haese, 80 Wis. 2d
285, 297, 259 N.W.2d 54 (1977) (reports of nonlegislative committees are
valid aids in interpreting statutes originating in those committees).
[4] The note to Wis. Stat. § (Rule) 809.18
states:
An appeal may
be dismissed by the appellant at any time prior to a court decision on the
appeal without approval of the court or the respondent. This changes the former procedure and
modifies Rule 42, FRAP [Federal Rules of Appellate Procedure]. The Rule specifically protects a respondent
who has or intends to file a cross-appeal, and for this reason the appellant is
authorized to dismiss the appeal at will.
The filing of a notice of dismissal does not affect the liability of the
appellant for costs or fees, or the power of the court to impose penalties
under Rule 809.83(1).
In
his dismissal of the state's appeal, Judge Wedemeyer cited this commentary as
support for the proposition that "[a]ppellants are permitted to dismiss
their appeals any time prior to a court decision on the appeal without the
approval of the court or the respondent."
[5] As the committee note states, Wis. Stat.
§ (Rule) 809.18 also changed former Wisconsin procedure regarding the
voluntary dismissal of appeals. In 1879
the court declared that "hereafter appellants will not be allowed to dismiss
their appeals, except by consent or upon notice to the respondents." Loucheine v. Strouse, 46 Wis. 487,
488, 50 N.W. 595 (1879).
[6] Fed. R. App. P. 42(b) (Voluntary Dismissal
in the Court of Appeals) provides as follows:
If the parties to an appeal or other proceeding shall
sign and file with the clerk of the court of appeals an agreement that the
proceeding be dismissed, specifying the terms as to payment of costs, and shall
pay whatever fees are due, the clerk shall enter the case dismissed, but no
mandate or other process shall issue without an order of the court. An appeal may be dismissed on motion of the
appellant upon such terms as may be agreed upon by the parties or fixed by the
court.
[7] Ormsby Motors, Inc. v. General Motors
Corp., 32 F.3d 240, 241 (7th Cir. 1994) (noting that Fed. R. App. P. 42(b)
authorizes the court of appeals to dismiss an appeal upon request of the
appellant, "subject to appropriate conditions fixed by the court"); American
Auto Mfrs. Ass'n v. Commissioner Mass. Dep't of Envtl. Protection, 31 F.3d
18, 22 (1st Cir. 1994) (court "has broad discretion to grant voluntary
motions to dismiss" under Fed. R. App. P. 42(b)); HCA Health Services
of Va. v. Metropolitan Life Ins. Co., 957 F.2d 120, 123 (4th Cir. 1992)
(while motion to dismiss appeal is generally granted, "courts of appeal
have the discretionary authority not to dismiss the case in appropriate
circumstances"); United States v. Washington Dep't of Fisheries,
573 F.2d 1117, 1118 (9th Cir. 1978) (motion to dismiss appeal under Fed. R.
App. P. 42(b) has been granted unless "the appellee has shown financial or
other injury caused by prosecution of the appeal"); Township of Benton
v. County of Berrien, 570 F.2d 114, 119 n.9 (6th Cir. 1977) ("use of
the word 'may' in the last sentence [of Fed. R. App. P. 42(b)] indicates that
the Court of Appeals has discretion in deciding whether or not to dismiss an
appeal").
[8] See, e.g., State v. Kenyon, 85
Wis. 2d 36, 46, 270 N.W.2d 160 (1978) (refusing to dismiss complaint
because it "would be unfair" to the defendant, who had traveled from
Texas to attend the preliminary and who would potentially be subjected to a
second preliminary at a later date if the state were allowed to dismiss); Russell
v. Johnson, 14 Wis. 2d 406, 413, 111 N.W.2d 193 (1961) (a plaintiff's
leave to discontinue may be denied; plaintiff's absence from court on day
appointed for trial resulted in inconvenience to the defendant and the jury); Burling
v. Burling, 275 Wis. 612, 82 N.W.2d 807 (1957) (upholding circuit court's
refusal to grant plaintiff's motion to dismiss in a divorce action, noting, inter
alia, that the defendant had not been given an opportunity to refute
charges made against her).
[9] This court also denied the parties' motion
for voluntary dismissal by unpublished order in Hefty v. Hefty, 172
Wis. 2d 124, 493 N.W.2d 33 (1992).
For this court's internal operating procedure regarding voluntary
dismissal, see Internal Operating Procedures II(L)(4) (Wis. 1994).
[10] Wis. Stat. § (Rule) 809.24 provides as
follows:
809.24 Rule (Reconsideration). The court of appeals may on its own motion
reconsider a decision or opinion at any time prior to remittitur if no petition
for review under s. 809.62 is filed or within 30 days of the filing of a
petition for review. A motion for
reconsideration is not permitted.
[11] The defendants also raise a jurisdictional
challenge to the court's decision to review this case. Citing Neely v. State, 89
Wis. 2d 755, 279 N.W.2d 255 (1979), the defendants point out that under
Wis. Stat. § (Rule) 809.62(1), a party can only appeal from an adverse
decision in the court of appeals; a party cannot appeal from a favorable
decision reached through a rationale with which it disagrees. The defendants argue that the court of
appeals' affirmance of the circuit court decision was favorable to the state
because it produced precisely the result that the state had originally sought
through voluntary dismissal: a return
to the status quo ante under which the defendants were entitled to
retesting by the crime laboratory.
We
reject this argument. It is simply not
true that the court of appeals' decision was "favorable" to the
state. The court of appeals' failure to
dismiss the state's appeal infringed directly upon the state's statutory right
under Wis. Stat. § (Rule) 809.18 to voluntarily and unilaterally dismiss
its appeal.