In a set of non-criminal opinions, SCOW issues new guidance on the commonly-invoked rule that COA is not at liberty to disagree with its own precedents and also takes another run at clarifying when a final order is truly “final” for the purposes of appeal.
Wisconsin Voter Alliance v. Secord, No. 2023AP36:
This case arises from a lawsuit wherein the Wisconsin Voter Alliance sought access to records maintained by the Walworth County register in probate concerning persons ineligible to vote due to incompetency. (¶4). Notably, the same organization also filed a lawsuit seeking the same records in Juneau County. (¶8). The Juneau County case reached the court of appeals first and District IV ultimately rejected the Alliance’s arguments in a published decision (Reynolds). (Id.). Shortly thereafter, however, District II issued a decision reaching the opposite conclusion. (¶25). Although it acknowledged the precedential force of Reynolds, COA identified factual differences, held that the issues presented were different, and therefore concluded that because the cases were distinguishable, it was not duty-bound to apply Reynolds. (Id.).
A five member majority (Protasiewicz, A.W. Bradley, Dallet, Hagedorn, and Karofsky) finds the arguments for distinguishing Reynolds “unpersuasive.” (¶31). Instead, it holds that D2 “simply disagreed” with that precedent and, by issuing a decision contrary to another published decision of the court of appeals, violated the rule of Cook v. Cook. SCOW therefore takes this opportunity to reaffirm the holdings of that case, and reminds COA that when it is confronted with binding authority it believes to be mistaken, it has two options: (1) certify the matter or (2) decide the appeal in adherence to the prior decision, while also making clear its belief that the case was wrongly decided. (¶34). In fact, COA is urged to act with caution even when the conflict may not be clear-cut: “We have said that if the court of appeals identifies so much as a “perceived conflict” in case law, certifying the appeal and highlighting the concern best serves the public interest and assists this court in developing and clarifying the law.” (¶36)
Justice Hagedorn files an interesting concurrence which, although it concedes certain policy arguments undergirding Cook, takes issue with some of the case’s logic. (¶53). Justice Hagedorn identifies efficiency tradeoffs, as when fractured decisions from SCOW fail to create citable precedent. (¶56). He makes a plea for further innovation from the bench and bar to provide an alternative to Cook, which he does not view as textually mandated by the Wisconsin Constitution, and even suggests “something like en banc review” for COA. (Id.).
We thought this case would be interesting for our readers, as the strictness of the Cook rule has often left litigators looking for creative “hooks” by which COA can distinguish away otherwise binding, unfavorable, authority. Yet, here, SCOW stands firm on the strictness of the rule and discourages such attempts while making it clear that COA seemingly has no authority to resolve even “perceived” conflicts. SCOW emphasizes that it is to be the only venue for resolving such issues.
Yet, as Justice Hagedorn points out, the present system has drawbacks–especially when SCOW’s low output (14 decisions in the 2023-2024 term according to SCOW Stats) pales in comparison to the high number of decisions consistently pumped out by COA. The case is also interesting when compared against the recent published decision in Seaton, where COA initially tried to certify the case to avoid a conflict and, when SCOW did not resolve the issue, issued a decision that arguably overrules COA precedent while also using a similar battery of arguments to try and reach the resolution via “distinguishing” that authority instead.
Perhaps Justice Hagedorn’s suggestion for further refinements to Wisconsin practice will result in interesting changes to our appellate system.
Morway v. Morway, No. 2023AP1614:
This family law case contains yet another attempt on the part of SCOW to clarify the definition of a “final order” under § 808.03(1). SCOW’s decision therefore provides a summary of the law to-date that is essential reading for litigants hoping to understand the doctrine:
To summarize, a judgment or order is final for purposes of appeal when it disposes of the entire matter in litigation as to one or more parties. WIS. STAT. § 808.03(1). A judgment or order disposes of the entire matter in litigation when the text of that judgment or order leaves nothing else to be decided as a matter of substantive law. Harder, 274 Wis. 2d 324, ¶17; Wambolt, 299 Wis. 2d 723, ¶39. When a judgment or order does not clearly dispose of the entire matter in litigation as to one or more of the parties, then we will liberally construe ambiguities in that judgment or order to preserve the right to appeal. Wambolt, 299 Wis. 2d 723, ¶50. Circuit courts are required to indicate that their final judgments and orders are final for purposes of appeal with a finality statement. Id.; Tyler, 299 Wis. 2d 751, ¶3. However, an incorrect or nonexistent finality statement will not render ambiguous an otherwise unambiguous final judgment or order. Admiral Ins. Co., 339 Wis. 2d 291, ¶29.
(¶25).
Here, David, the appellant, claims that this “final order” was not really final because it explicitly contemplated the filing of a substantive motion by the opposing party. (¶31). However, SCOW observes that, based on the text of the order, there was not yet a pending substantive motion. (¶32). And, even though the order indicated that the opposing party “will file” such a motion, SCOW holds that if this statement rendered the order non-final, then the litigation could be held open “indefinitely.” (¶32). Because the order disposed of all motions presently before the court, it was a “final” order. (¶34).
The dissent takes issue with this conclusion, averring that the plain text of the order clearly signalled the litigation was not yet concluded:
Karen requested a contribution from David to attorney’s fees regarding the Motion to Compel Order. The Court believes awarding attorney fees through the point of the Order on the Motion to Compel is appropriate. As to Karen’s request for contribution to attorney fees for overtrial, the Court presently has insufficient information to address that issue and Karen will file a separate Motion on this issue.
(¶66). “This says rather plainly that a motion for overtrial was expected.” (¶67). Accordingly, the dissent faults the majority for privileging policy arguments over the plain text, thereby creating more uncertainty about the definition of a “final order.”
We recognize that this is a pretty niche area, but the “final order” rule does pop up from time to time in our practice such that we thought our readers should be advised of this latest procedural development. The takeaway is that orders are final once they dispose of all pending matters; it would appear that the circuit court’s contemplation of future litigation that has not yet occurred is insufficient to make an order nonfinal.
