TAYLOR 97 CV 415 v. ROCK COUNTY SHERIFF DEPARTMENT (1998)

This is a pro se appeal by Anthony D. Taylor, who currently resides in a state correctional institution.   Certain new and amended statutes relating to litigation by prisoners became effective September 1, 1998, pursuant to 1997 Wis. Act 133.   The respondents move for an order applying some Act 133 provisions to this appeal.   We conclude that Act 133 does not apply to appeals that were pending on its effective date, and therefore we deny the motion.

Act 133 became effective September 1, 1998.   See 1997 Wis. Act 133, § 44(1).   Taylor filed his notice of appeal on August 3, 1998.   We granted Taylor's fee  waiver petition on August 5, 1998, using our procedures as they existed before implementation of Act 133.   The respondents move for an order directing Taylor to follow the Act 133 procedures for commencing an appeal without prepayment of fees.   See § 814.29(1m), stats., as created by 1997 Wis. Act 133, § 35.   They further request that, if we find this appeal frivolous, we notify the Department of Justice pursuant to § 809.103, stats., as created by 1997 Wis. Act 133, § 28.   Taylor opposes the motion.   Because the Department of Justice and Department of Corrections have certain administrative duties under Act 133, we directed them to address the motion.   They have filed a joint response.

For purposes of this motion, we assume, without deciding, that this would be an appeal by a “prisoner” for purposes of applying Act 133.¹  The act first applies to “civil actions, special proceedings, injunctions and petitions for a common law writ of certiorari pending on the effective date” of the act.   See 1997 Wis. Act 133, § 43(1).   This provision does not state that the act applies to appeals pending on the effective date, and appeals are not expressly covered by any other provision regarding the effective date.   This omission is in contrast to other parts of the act that specifically include appeals.   For example, the provision creating the new procedures for prepayment of fees states that a prisoner must take certain steps when requesting leave to commence or defend “an action, special proceeding, writ of error or appeal.”   See § 814.29(1m)(b),  stats., as created by 1997 Wis. Act 133, § 35 (emphasis added).

The departments agree with our initial conclusion that Act 133 does not apply to appeals that were pending on September 1, 1998.   They note that there might be some question as to whether Act 133's provisions would normally be applied retroactively in the absence of a clear legislative intent.   However, they observe, in this act the legislature did clearly address that question.   Act 133 provides a list of the types of pending cases to which it applies, and the list does not include appeals.   Applying the maxim expressio unius est exclusio alterius, the departments conclude that by listing some types of cases, but not appeals, the legislature did not intend Act 133 to apply to appeals pending on its effective date.   We agree.   Therefore, the act applies only to appeals that were commenced by the filing of a notice of appeal on or after September 1, 1998.

Applying this result to the motion at hand, we conclude that Taylor cannot be ordered to follow the Act 133 procedures for commencing an appeal without prepayment of fees, and that, if we find the appeal frivolous, we are not required to refer the matter to the Department of Justice under § 809.103, Stats.²  Therefore, we deny the motion.

Motion denied.

FOOTNOTES

1.   Most of the act's provisions apply to “prisoners,” as that term is defined in § 801.02(7)(a)2, stats., as created by 1997 Wis. Act, 133, § 12.   Because the definition of prisoner depends in part on the type of relief being sought, one person can be a “prisoner” and “non-prisoner” at the same time, in different proceedings.

2.   We do not regard our opinion on this issue as premature or advisory.   Once the question is raised by this motion, we believe a litigant is entitled to know, before continuing with the appeal, whether the more punitive provisions contained in Act 133 might be applied.

PER CURIAM.