Sept. 2, 2009 – Statutory changes to the rules of appellate procedure made by 2009 Wisconsin Acts 25, 26, and 27 take effect on Nov. 1, 2009. Here’s what you need to know.

On June 19, 2009, Gov. Jim Doyle signed three bills amending the rules of appellate procedure at a meeting of the Wisconsin Judicial Council in Madison. The bill signing marked the completion of the Judicial Council’s extensive recommended revisions to the rules.

Background

The amendment process began in 1997, when the Judicial Council’s Appellate Procedure Committee solicited and reviewed suggestions for changes to the appellate rules. After numerous drafts were written, the council unanimously approved a rule-change petition, which the council filed with the Wisconsin Supreme Court in February 2000. On April 30, 2001, the supreme court entered an order amending the rules of appellate procedure. Those amendments to existing rules and new rules became effective on July 1, 2001.¹

Although a majority of the council’s recommendations were adopted by supreme court rule, during the hearings on the petition the justices indicated that three proposals were more appropriate for legislation than rulemaking, because their purpose was to modify appellate court jurisdiction. Those three proposals have now been adopted, concluding the comprehensive amendment of the rules of appellate procedure that began more than a decade ago.

Tolling the time limit for filing a petition for review in the supreme court while a motion for reconsideration is pending in the court of appeals. 2009 Wisconsin Act 25 tolls the time limit for filing a petition for review in the supreme court until the court of appeals disposes of a timely filed motion for reconsideration of its opinion or order.²

Under current law, a person seeking Wisconsin Supreme Court review of a court of appeals decision has 30 days to file a petition for review in the supreme court.³ In 2001, at the Judicial Council’s request, the supreme court created Wis. Stat. section (rule) 809.24 to allow a person to file a motion for reconsideration in the court of appeals.⁴ The reconsideration rule was deemed necessary for situations in which a court of appeals decision contains errors that likely would not merit supreme court review. The rules, however, did not allow the supreme court to toll the 30-day time limit for filing a petition for review while a motion for reconsideration was pending in the court of appeals because the time limit is jurisdictional, and only the legislature can effect changes in the supreme court’s jurisdiction.⁵

Act 25 tolls the time for filing or responding to a petition for review of a court of appeals decision or order in the supreme court while a timely motion for reconsideration of the same decision or order is pending in the court of appeals.⁶ If a motion for reconsideration is filed, no party may file a petition for review until the motion has been resolved.⁷ If a petition for review was filed before the motion for reconsideration was filed, then the time for responding to the petition is tolled until the motion is decided.⁸ The Act also establishes time frames for subsequent filings in the supreme court following resolution of a motion for reconsideration. The changes made by Act 25 are intended to avoid unnecessary duplication of effort for the parties and the appellate courts and to minimize unnecessary expense. However, attorneys should note that no motion for reconsideration may be filed in a termination of parental rights case, because of the abbreviated appeal time limits provided in section (rule) 809.107.⁹

Appeal in certain commitment proceedings. 2009 Wisconsin Act 26 specifies that appeals in chapter 980 (sexually violent person) and section 971.17 (not guilty by reason of mental disease or defect) commitment proceedings are subject to the unified appeal procedure in Wis. Stat. sections (rules) 809.30 through 809.32.¹⁰ This unified appeal procedure now governs all appeals of criminal, children’s code, juvenile code, commitment, and protective placement cases in which a person has the right to appointed counsel, and it requires an appellant to raise all issues in the first appeal as of right.

Act 26 creates references in the procedural statutes for each case type (sections 48.465, 938.47, 971.17(7m), and 980.038 (4) (a)) to assist the courts, attorneys, and parties in these cases by alerting them to the applicable appellate procedure rules. These changes are intended to promote efficiency by eliminating successive appeals and remands, clarifying the appropriate appellate procedure in all cases, and incorporating the case law to give fair notice of the appropriate procedures.

Appeal of suppression issues in juvenile cases. 2009 Wisconsin Act 27 allows suppression of evidence issues to be raised on appeal in chapter 938 (Juvenile Justice Code) cases in which the juvenile has admitted to the delinquency petition.¹¹

“The general rule is that a guilty, no contest, or Alford plea ‘waives all non-jurisdictional defects, including constitutional claims.’”¹² Wis. Stat. section 971.31(10) provides a statutory exception to this “guilty plea waiver rule” in criminal cases and allows defendants to appeal suppression rulings following a guilty plea. Act 27 now extends this statutory exception to juvenile cases, allowing juveniles to appeal suppression rulings following an admission to a delinquency petition.

Rulings on suppression issues often determine the merit or outcome of a case. It is not unusual for a criminal defendant to enter a plea after losing a suppression motion, because the only issue in the case is whether the evidence was legally obtained and therefore admissible.

Under current law, a juvenile cannot appeal from an order denying a motion to suppress evidence or a motion to exclude a statement in a chapter 938 case unless the juvenile preserves the suppression issue(s) by proceeding with a trial. To avoid unnecessary trials in delinquency proceedings, this bill creates Wis. Stat. sections 808.03(3) and 938.297(8) to allow suppression and admissibility appeals following an admission of, or a “no-contest” plea to, the allegations in a delinquency petition. For the same reason, the Act includes a no-contest plea within the waiver exceptions in section 971.31(10).

Act 27 recognizes the importance of being able to litigate these issues, which enforce constitutional rights, and acknowledges that it is inefficient to hold trials just to preserve the right to appeal constitutional defects in the proceedings.

The statutory changes made by Acts 25, 26, and 27 are effective Nov. 1, 2009, and apply to actions commenced on or after that date.

¹Order No. 00-02, 2001 WI 39.
²2009 Wis. Act 25.
³Wis. Stat. § (rule) 808.10(1).
⁴Wis. Stat. § (rule) 809.24(1).
⁵Wis. Stat. § 751.12; Wis. Const. art. VII, § 3.
⁶Wis. Stat. § 808.10(2).
⁷Wis. Stat. § 809.32(5).
⁸Id.
⁹Wis. Stat. § 809.24(4).
¹⁰2009 Wis. Act 26; Wis. Stat. §§ (rules) 809.30-.32.
¹¹2009 Wis. Act 27.
¹²State v. Multaler, 2002 WI 35, ¶ 54, 252 Wis. 2d 54, 643 N.W.2d 437.

April M. Southwick, Hamline 1998, is attorney for the Wisconsin Judicial Council, Madison.