court of appeals decision; for Genevieve M.: Lora B. Cerone, SPD, Madison Appellate
Notice of Appeal Contents: Failure to Identify Appealable Document; Notice of Intent as Substitute
¶2 n. 2:
The failure of the notice of appeal to correctly identify the final appealable document is not fatal to appellate jurisdiction. See Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267 (1992). The caption has been amended to reflect that the appeal is taken from both orders. Following entry of the order for protective placement, the appellant timely filed a notice of intent to pursue postdisposition relief under Wis. Stat. Rule 809.30(2)(a). That notice may be construed as a timely notice of appeal from the order appointing a guardian.
No quarrel with the idea that omissions, even nominally critical ones, don’t undermine a notice of appeal. Nor, really, with the idea that the notice of intent “may be construed as a timely notice of appeal.” It’s just that the latter principle is somewhat novel (and, frankly not always followed in the past by the court), and therefore worth keeping in mind.
Notice of Appeal Contents: Chs. 54 (Guardianship) and 55 (Protective Placement) = 3-Judge Panel; Combined 1-and 3-Judge Panel, Default = 3-Judge
Although a ch. 54 guardianship appeal is decided by a 3-judge and ch. 55 protective placement by a 1-judge panel, when the 2 were commenced and decided under a single trial court case number, the appeal will be decided by a 3-judge panel:
¶5 The plain language of Wis. Stat. § 752.31(1) establishes that all appeals before the court of appeals shall be decided by a panel of three judges. Section 752.31(3) merely provides exceptions to the general rule for the types of cases listed in § 752.31(2). Exceptions are to be strictly construed and applied. See Lang v. Lang, 161 Wis. 2d 210, 224, 467 N.W.2d 772 (1991). Accordingly, all doubts about whether an appeal should be decided by a three-judge panel or one court of appeals judge should be resolved in favor of the default rule that a three-judge panel be utilized. See Wisconsin Fertilizer Ass’n, Inc. v. Karns, 52 Wis. 2d 309, 317-18, 190 N.W.2d 513 (1971) (with regard to exemptions to safety statutes all doubts should be resolved in favor of the general provision rather than the exception). Thus, where an appeal involves the type of case specified in § 752.31(2)(d), and also involves a case which § 752.31(1) requires to be heard by a three-judge panel, the appeal will be assigned for decision by a three-judge panel. This is consistent with this court’s practice of having the chief judge order a one-judge appeal to be decided by a three-judge panel when the appeal is consolidated with an appeal required by statute to be heard by a three-judge panel. See Wis. Stat. Rules 809.10(3), 809.41(3). This does not change that appeals which involve only a protective placement order or other order confined to a proceeding under Wis. Stat. ch. 55, such as a termination petition under Wis. Stat. § 55.17 or annual review under Wis. Stat. § 55.18, will be assigned for decision by one court of appeals judge.
