State v. Lee
| Decision Date | 17 January 1996 |
| Docket Number | No. 93-2546-CR,93-2546-CR |
| Citation | 197 Wis.2d 959,542 N.W.2d 143 |
| Parties | 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. |
| Court | Wisconsin Supreme Court |
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.
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...
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