Thursday, March 8, 2012

Staying On Sidelines Dooms Appeal

The Wisconsin Supreme Court unanimously (with the Chief Justice concurring and Justice Prosser not participating) held that the United States had failed to preserve appellate review of the case.

The question:

This case requires us to answer a threshold question concerning whether an appeal in this insurance company rehabilitation case may go forward.  The court of appeals granted the motion of the Office of the Commissioner of Insurance (Commissioner) to dismiss the appeal by the United States. The Commissioner had argued that the appeal should be dismissed either on the grounds that the notice of appeal was fundamentally defective such that the court of appeals had no jurisdiction or on the grounds that the United States had waived its right to appeal issues by failing to appear in the circuit court.  The United States Department of Justice attorney who signed the notice of appeal was not admitted to practice law in Wisconsin and had not obtained pro hac vice admission. The court of appeals concluded that the notice of appeal did not include a signature of an "attorney of record" as Wis. Stat. § 802.05 requires.  The court of appeals did not decide the waiver issue but dismissed on jurisdictional grounds.  The United States petitioned this court for review, which we granted.  We affirm the court of appeals on the basis of waiver.

The conclusion:

What is inescapable in reviewing the record in this case is the sense that the United States almost begrudgingly took steps "to preserve its right to appeal" in only the most technical sense while, ironically, overlooking fundamental appellate principles establishing what parties must do to preserve that right: raise their issues in the circuit court in the first instance.  The court of appeals dismissed the appeal on the basis of an unauthorized signature on the notice of appeal.  In reaching our conclusion, we focus not on the signature, but on the fact that the notice of appeal itself was the only effort by the United States to involve itself with the circuit court.  It did, as noted, attempt to remove this matter to federal court.  Despite its apparent outrage at the injunction (in one filing to the court of appeals it stated, "[W]e are not aware of any other creditor that was so mistreated"), it remained on the sidelines while the rehabilitation was proceeding in the circuit court and chose not to raise its objections until after the final order was entered. 

The United States conceded at oral argument that it made an intentional decision not to litigate any of the issues involved in the circuit court.  Our case law is clear and consistent——failure to preserve issues means that they are waived.  Applying well-established principles of law that apply equally to the government when it is a party, we hold that such a decision precludes the United States from pursuing relief in the court of appeals. We therefore affirm the decision of the court of appeals to dismiss the United States' appeal.

(Mike Frisch)

 

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