Not a Lexis+ subscriber? Try it out for free.


Foley & Lardner LLP: Got (Raw) Milk? How About Jurisdiction? Something's Sour in the Raw-Milk Case

By Philip C. Babler

[On Aug. 7], the Wisconsin Court of Appeals released its opinion in Farm-To-Consumer v. Wis. DATCP, 11AP2264, a closely watched case involving Wisconsin’s regulation of raw-milk production [enhanced opinion available to subscribers]. A couple of local farmers had sought a declaratory judgment, invalidating a Wisconsin law criminalizing the distribution and sale of raw milk. The court of appeals’ decision was a long time coming (two years after it was submitted on the briefs), yet perhaps it should not have come at all.

The plaintiffs appealed from the denial of their motion for summary judgment. Appellate courts in Wisconsin typically do not have jurisdiction to hear appeals from the denial of a summary-judgment motion because decisions denying motions for summary judgment do not dispose of the entire matter as to the parties, a cardinal rule for creating final, appealable orders. The opinion from Wisconsin’s court of appeals appears to have missed the issue entirely.

Under Wis. Stat. § 808.03(1), a final judgment may be appealed as of right when it “disposes of the entire matter in litigation as to one or more of the parties.” The denial of a summary-judgment motion does not dispose of a matter. A trial is required, even for declaratory-judgment actions. Wis. Stat. § 806.04(9). The rule’s only exception is if a party requests a permissive appeal. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 563 N.W.2d 472 (1997) [enhanced opinion]. Nothing on the docket indicates that any party sought permission here.

It’s not hard to see where the court of appeals went awry. In Wambolt v. W. Bend Mut. Ins. Co., 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670 [enhanced opinion], the Wisconsin Supreme Court required that all final orders and judgments must state that they are final for the purposes of appeal. The circuit court in this raw-milk case entered two orders, one denying summary judgment and the other deciding a motion to clarify. Each erroneously stated that it was final.

The plaintiffs appealed these orders, and the State moved to dismiss the appeal for lack of jurisdiction. In a February 14, 2012 order, the court of appeals held that it had jurisdiction because both of the circuit court’s orders complied with Wambolt‘s directive that an order state that it is final. It did not analyze whether the circuit court’s decision disposed of the entire matter as to the parties so that it was in fact “final.”

Calling a nonfinal order final doesn’t magically make it final if it isn’t. Otherwise, circuit courts could expand the jurisdiction of the court of appeals dramatically, and typically jurisdiction is something that the court of appeals doesn’t assume lightly. A few of the appellate briefs cast the circuit court’s decision as an affirmative grant of summary judgment for the State. But that’s not a fair reading of what the circuit court did.

It will be interesting to see if a petition for review is filed. If the case reaches the Supreme Court, this absence of appellate jurisdiction should preclude review on the merits. It would be odd if the Wambolt rule—meant to remove doubt as to whether the circuit court intended an order to be final (so that a potential appellant doesn’t miss the jurisdictional significance of a truly final order)—were to be transformed into a way that the circuit court could supplant the court of appeals’ exclusive authority to decide to review what in fact is a nonfinal order.

For more information about LexisNexis products and solutions, connect with us through our corporate site.