Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Stephanie Lampone v. LIRC, Case No. 2008AP734 (Wis. Ct. App., Dist. 1, March 17, 2009) (unpublished)

Please note that Wis. Stat. 809.23(3) provides that an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.

Digest Codes: PC 769

The commission issued a decision finding a quit under Wis. Stat. § 108.04(7)(a). In an attempt to appeal that decision, the employee's attorney filed a petition for writ of certiorari, naming the department as the only defendant. The circuit court initially allowed the writ, but after the department moved for dismissal for failure to follow the appeal procedures of Wis. Stat. § 102.23(1)(a), the court quashed the writ and dismissed the action for failure to follow the statutory procedures. The employee's attorney next filed a request for reconsideration with the commission, but the commission denied the request. Subsequently, and well after the 30-day appeal period applicable to the commission's decision had expired, the employee's attorney filed a second petition for writ of certiorari. Then, while that second writ was still pending, he filed a third petition for writ of certiorari with another judge. The second writ was dismissed by the court for lack of prosecution. The third writ was also dismissed, with the judge citing the “Doctrine of Preclusion” as reason for the dismissal. The employee, by her attorney, appealed this last dismissal to the court of appeals.

Held: As the commission correctly notes, the circuit court decision dismissing the third writ must be upheld on the basis that the employee failed to follow the statutory procedures for initiating an appeal of a commission decision. The statute requires a summons and complaint naming the commission as a defendant, and writs of certiorari are not available under the statutorily-prescribed procedure. The doctrine of preclusion is not applicable. The circuit court decision is amended as to its reasoning, but affirmed in its dismissal of the appeal.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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