Supreme Court Orders

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The Wisconsin Supreme Court sets a public hearing for Oct. 17 to consider a procedure to suspend law licenses or refuse bar admission if the attorney or applicant is delinquent in making court-ordered support payments or fails to comply with a subpoena or warrant. The court also sets a public hearing for Oct. 23 to consider the Judicial Council's proposed amendments to the rules of appellate procedure. By its own motion, the court also has adopted fee increases proposed by the Board of Bar Examiners.

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Appellate Procedure -
Proposed Changes

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In the Matter of the Amendment of the Rules of Appellate Procedure: Wis. Stat. §§ 808.04(1), (3) and (4); 808.07(6); 808.075(2) and (8); 808.10; 809.01(5); 809.10(1); 809.107(5), (5m) and (6am); 809.11(4) to (8); 809.13; 809.14(1), (2) and (3); 809.15(2) to (5); 809.16; 809.17; 809.19(1), (3), (4), and (6) to (11); 809.24; 809.25(1) and (3); 809.26; 809.30(1) to (4); 809.31(5); 809.32(1) to (4); 809.40(1), (3) and (4); 809.41(1) to (4); 809.43(1) and (2); 809.50(1), (2) and (3); 809.51(2); 809.60(1) and (2); 809.62(3), (4) and (8); 809.64; 809.70(2); 809.80(1) and (3) to (5); 809.81(2) and (8); 809.82(2)(d); 809.83(2)

Order 00-02

On Feb. 2, 2000, the Judicial Council of Wisconsin filed a petition seeking the amendment of numerous rules of appellate procedure provided in Wis. Stat. chapters 808 and 809. The intended purpose of the proposed amendments is set forth in the Comments of the Judicial Council, which the Judicial Council asks be published with the amendments as Judicial Council Committee Notes.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Hearing Room, 119 Martin Luther King Jr. Blvd., Madison, Wis., on Oct. 23, 2000, at 1:30 p.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing and, if necessary, continued on Oct. 24, 2000.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 28th day of April, 2000.

By the court:
Cornelia G. Clark, Clerk

Petition

The Judicial Council respectfully petitions this court for an order pursuant to section 751.12, Stats., adopting the following amendments to Chapter 808, Appeals and Writs of Error, and Chapter 809, Rules of Appellate Procedure. This petition is explained in the comments to the text that were supplied by the Judicial Council. The Judicial Council further respectfully petitions this court to publish the comments as Judicial Council Committee Notes to the adopted amendments.

SECTIONS 808.04 (1), (3) and (4) of the statutes are amended to read:

808.04 Time for appeal to the court of appeals. (1) Initiating an appeal. An appeal to the court of appeals must be initiated within 45 days of entry of a final judgment or order appealed from if written notice of the entry of a final judgment or order is given within 21 days of the final judgment or order as provided in s. 806.06(5), or within 90 days of entry if notice is not given, except as provided in this section or otherwise expressly provided by law. Time limits for seeking review of a non-final judgment or order are established in s. 809.50.

(3) Except as provided in subs. (4) and (7), an appeal in a criminal case, or a case under ch. 48, 51, 55 or, 938 or 980 or a proceeding under s. 971.17 shall be initiated within the time period specified in s. 809.30 or 809.32.

(4) Except as provided in sub. (7m), an appeal by the state in either a criminal case under s. 974.05 or a case under ch. 48 or, 938 or 980 or a proceeding under s. 971.17 shall be initiated within 45 days of entry of the judgment or order appealed from.

COMMENT to Section 808.04: The word "final" has been inserted before "judgment or order" in sub. (1). The amendment specifies that the 45-day time limit applies in appeals from final orders and the 10-day time limit in s. 809.50 applies to appeals from non-final orders. Subs. (3) and (4) have been modified to include appeals in ch. 980 cases and s. 971.17 proceedings.

SECTION 808.07(6) of the statutes is amended to read:

808.07(6) Sureties on undertakings. A surety shall file with the undertaking an affidavit that the surety has a net worth in property within this state not exempt from execution which exceeds the amount of the undertaking, except as provided in s. 632.17(2). The respondent may by motion object to the sufficiency of a surety within 10 14 days after service of a copy of the undertaking.

COMMENT to Section 808.07: This is the first of fifteen statutes scattered throughout the rules in which a 10-day deadline is being changed to a 14-day deadline. Also 7-day deadlines are being changed to 11-day deadlines. Many of the current deadlines in Chapter 809 are either 7 or 10 days and are affected by s. 801.15(1)(b), which excludes "Saturdays, Sundays and holidays" from time periods "less than 11 days." Additionally, many time periods in ch. 809 run from the service of a document, and under s. 801.15(5)(a), when a document is served by mail, 3 days are added to the prescribed period. The interplay of s. 801.15 and ch. 809 causes many of the time periods in ch. 809 to be substantially longer than the number of days specified in the Rules. The varying time periods have made automation of the court's deadlines difficult.

The proposed amendment of all of the 7-day or 10-day deadlines to 11 and 14 days, respectively, will remove the impact of s. 801.15(1)(b) on the Rules of Appellate Procedure. However, there will be little adverse impact on the time actually given to parties. The proposed change will greatly facilitate the court's calculation of deadlines. If circumstances demand a different time period, the court may set an appropriate deadline under s. 809.82(2)(a).

SECTION 808.075(2) of the statutes is amended to read:

808.075 (2) In a case appealed under s. 809.30, the circuit court retains the power to act on all issues until the notice of appeal has been filed with the clerk of the trial circuit court, except that the circuit court may not act upon any motion to extend a time limit that is specified in s. 809.30. Thereafter, the circuit court may act only as provided in subs. (1) and (4).

SECTION 808.075(8) of the statutes is created to read:

808.075(8) If an appellate court remands the record to the circuit court for additional proceedings under sub. (5) or (6), the appellate court, in the pending appeal, may review the judgment or order that the circuit court enters following remand. If any party is aggrieved by the judgment or order of the circuit court, the party shall file in the appellate court a written statement of its objections to the judgment or order within 14 days after the record is returned to the clerk of the appellate court. A party that files a statement of objections need not file an additional notice of appeal or cross-appeal.

COMMENT to Section 808.075: The second sentence in sub. (2) is a codification of State v. Harris, 149 Wis. 2d 943, 440 N.W.2d 364 (1989). Subsection (8) is new and is intended to clarify procedure following a remand and to eliminate an additional notice of appeal or cross-appeal.

SECTION 808.10 of the statutes is amended to read:

808.10. Review by the supreme court. A decision of the court of appeals is reviewable by the supreme court only upon a petition for review granted by the supreme court. The petition for review shall be filed in the supreme court within 30 days of the date of the decision of the court of appeals, except as provided in s. 809.62(8).

COMMENT to 808.10: Section 808.10 is amended to cross-reference statutory provisions modifying the time for filing a petition for review when a party files a motion for reconsideration of a court of appeals decision or order.

SECTION 809.01(5) of the statutes is amended to read:

809.01(5) "Cross-appellant" means a respondent who files a notice of cross-appeal or a respondent who files a statement of objections under s. 808.075(8).

SECTION 809.10(1) of the statutes is repealed and recreated to read:

809.10(1) Notice of appeal. (a) Filing. A person shall initiate an appeal by filing a notice of appeal with the clerk of the circuit court in which the judgment or order appealed from was entered.

(b) Content: The notice of appeal shall include all of the following:

1. The case name and number.

2. An identification of the judgment or order from which the person filing the notice intends to appeal and the date on which it was entered.

3. A statement whether the appeal is in one of the types of cases specified in s.752.31(2).

4. A statement whether the appeal is one of those to be given preference in the circuit court or court of appeals pursuant to statute.

5. If the appeal is under s. 809.30 or 809.32, a statement of the date of service of the last transcript or copy of court record if no post-conviction motion is filed, the date of the order deciding postconviction motions, or the date of any other notice of appeal deadline that was established by the court of appeals.

6. If counsel is appointed under ch. 977, a copy of the order appointing counsel.

   (c) Copies of the notice. At the same time the person files the notice of appeal, the person shall send a copy of the notice of appeal to the clerk of the court of appeals.

   (d) Docketing statement. The person shall also send the court of appeals an original and one copy of a completed docketing statement on a form prescribed by the court of appeals. The statement shall accompany the court of appeals' copy of the notice of appeal. The person shall also send a copy of the completed docketing statement to opposing counsel. Docketing statements need not be filed in appeals brought under ss. 809.32, 974.06(7), 809.105, 809.107, or in cases in which a party appears pro se. Docketing statements need not be filed in appeals brought under ss. 809.30 and 809.40, except that a docketing statement shall be filed in cases arising under chs. 48, 51, 55 and 938.

   (e) Time for filing. The notice of appeal must be filed within the time specified by law. The filing of a timely notice of appeal is necessary to give the court jurisdiction over the appeal.

   (f) Error in content not jurisdictional defect. An inconsequential error in the content of the notice of appeal is not a jurisdictional defect.

COMMENT to Section 809.10: Former sub. (1)(a) has been repealed and recreated as subs. (1)(a) to (d). Subsection 1(d) clarifies when a docketing statement must be filed. Former sub. (1)(b) has been repealed and recreated as sub. (1)(e). Subsection (1)(f) is new and codifies existing law. See Northridge Bank v. Community Eye Care Ctr., 94 Wis. 2d 201, 203, 287 N.W.2d 810, 811 (1980); Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267, 269 n.2 (1992).

Note: Please see s. 809.32 for special requirements for a Notice of Appeal in a No Merit Report appeal.

SECTION 809.107(5) of the statutes is repealed and recreated to read:

809.107 (5) Notice of appeal; record.

(a) Filing; copy. Within 30 days after service of the transcript, the person filing a notice of intent to appeal under sub. (2) shall file a notice of appeal as provided in s. 809.10(1) and serve a copy of the notice on the persons required to be served under sub. (2).

(b) Transmittal of record. The clerk of the trial court shall transmit the record to the court of appeals as soon as the record is prepared but in no event more than 15 days after the filing of the notice of appeal.

(c) Ordering transcripts and court record. The appellant shall request a copy of the transcript of the reporter's notes of the proceedings for each of the parties to the appeal and make arrangements to pay for the transcript and copies within 5 days of the filing of the notice of appeal. The appellant may order a copy of the court record within 5 days.

(d) Statement on transcript. The appellant shall file a statement on transcript with the clerk of the court of appeals, and shall file a copy of the statement on transcript with the clerk of the circuit court within 5 days of the filing of the notice of appeal in the circuit court. The statement on transcript shall either designate the portions of the transcript that have been requested by the appellant or contain a statement by the appellant that a transcript is not necessary for prosecution of the appeal. If a transcript is necessary for prosecution of the appeal, the statement on transcript shall also contain a statement by the court reporter that the appellant has requested copies of the transcript or designated portions thereof for each of the other parties; that the appellant has made arrangements to pay for the original transcript and for all copies for other parties; the date on which the appellant requested the transcript and made arrangements to pay for it; and the date on which the transcript must be served on the parties.

(e) Service of transcript. The court reporter shall serve copies of the transcript on the parties indicated in the statement on transcript within 5 days after the date the appellant requested copies of the transcript.

SECTION 809.107(5m) of the statutes is created to read:

(5m) No merit reports. A Rule 809.32 no merit report, response and supplemental no merit report may be filed in an appeal from an order or judgment terminating parental rights. The appointed attorney shall file in the court and serve on the client parent the no merit report and certification within the time period under sub. (6)(a). The parent may file in the court and the clerk shall serve on the attorney a response to the no merit report within the time period under sub. (6)(b). The attorney may file a supplemental no merit report and affidavit(s) within the time period under sub. (6)(c). After a no merit report has been filed and upon request by the client parent, the attorney shall transmit to the parent a copy of the transcript and the court record.

SECTION 809.107(6)(am) of the statutes is created to read:

809.107(6)(am) Motion for remand. If the appellant intends to appeal on any ground that may require post-judgment fact-finding, the appellant shall file a motion in the court of appeals, within 15 days after the filing of the record on appeal, raising the issue and requesting that the court of appeals retain jurisdiction over the appeal and remand to the circuit court to hear and decide the issue. If the court of appeals grants the motion for remand, it shall set time limits for the circuit court to hear and decide the issue, for the appellant to request transcripts of the hearing and for the court reporter to file and serve the transcript of the hearing, and the court of appeals shall extend the time limit under par. (a) for the appellant to file a brief presenting all grounds for relief in the pending appeal.

COMMENT to Section 809.107: Former sub. (5) has been recreated as subs. (5)(a) and (b). Subsection (5)(c) is new and requires the appellant to request a transcript for the other parties to the appeal. Subsection (5)(d) is new and requires the appellant to file a statement on transcript. Subsection (5)(e) is new and requires the court reporter to serve copies of the transcript within 5 days after it is ordered. Subsection (5m) is new and codifies Brown County v. Edward C.T., 218 Wis. 2d 160, 579 N.W.2d 293 (Ct. App. 1998), which extends the no merit procedure to TPR cases. Subsection (6)(am) is new and provides a procedure for ineffective assistance of counsel claims and other claims that require fact-finding after the final judgment or order has been entered.

SECTION 809.11(4) of the statutes is repealed and recreated to read:

809.11(4) Requesting transcripts and filing statement on transcript.

(a) The appellant shall request a copy of the transcript of the reporter's notes of the proceedings for each of the parties to the appeal and make arrangements to pay for the transcript and copies within 14 days of the filing of the notice of appeal.

(b) The appellant shall file a statement on transcript with the clerk of the court of appeals, and shall file a copy of the statement on transcript with the clerk of the circuit court within 14 days of the filing of the notice of appeal in the circuit court. The statement on transcript shall either designate the portions of the transcript that have been ordered by the appellant or contain a statement by the appellant that a transcript is not necessary for prosecution of the appeal. If a transcript is necessary for prosecution of the appeal, the statement on transcript shall also contain a statement by the court reporter that the appellant has requested copies of the transcript or designated portions thereof for each of the other parties; that the appellant has made arrangements to pay for the original transcript and for all copies for other parties; the date on which the appellant requested the transcript and made arrangements to pay for it; and the date on which the transcript must be served on the parties.

SECTIONS 809.11(5) to (8) of the statutes are created to read:

809.11(5) Additional Portions of Transcript. Within 14 days after service of a statement on transcript as required by sub. (4), any other party may file a designation of additional portions to be included in the transcript. Within 14 days after the service of such a designation, the appellant shall file the statement required by sub. (4)(b) covering the other party's designation. If the appellant fails or refuses to request the designated portions the other party may request the portions, or move the circuit court for an order requiring the appellant to do so.

(6) Cross Appeals. Subsections (4) and (5) apply to cross-appellants.

(7) Reporter's obligations. (a) Service of transcript copies. The reporter shall serve copies of the transcript on the parties to the appeal, file the transcript with the trial court and notify the clerk of the court within 60 days of the date the transcript was requested and arrangements were made for payment. If supplementation or correction of the record is ordered, the reporter shall serve copies of the supplemental or corrected transcript on the parties to the appeal, file the supplemental or corrected transcript with the trial court, and notify the clerk of the court within 20 days of the order for supplementation or correction, or within the time limit set by order of the court.

(b) Return of statement regarding transcript arrangements. The reporter shall sign and send to the appellant, within 5 days after receipt, the statement regarding transcript arrangements and service required under sub. (4)(a).

(c) Extensions. A reporter may obtain an extension for filing the transcript only by motion showing good cause that is filed in the court of appeals and served on all parties to the appeal.

(d) Sanctions. If a reporter fails to timely file a transcript, the court may declare the reporter ineligible to act as an official court reporter in any court proceeding and may prohibit the reporter from performing any private reporting work until the overdue transcript is filed.

COMMENT to Section 809.11: The revision places all of the rules concerning transcript preparation and service in one statute, and eliminates the need for former s. 809.16. Subsection (4) combines and recreates former s. 809.11(4) and the first sentence of former s. 809.16(1). Subsection (5) recreates the remaining portions of former s. 809.16(1). The time limits in subs. (4) and (5) are changed from 10 to 14 days. See the comment to s. 808.07(6) concerning time limits. No other substantive changes in subs. (4) and (5) were intended. Subsection (6) recreates former s. 809.16(2). Subsection (7)(a) recreates former s. 809.16(3). Subsection (7)(b) is created to specify a time within which the court reporter must furnish a statement regarding transcript arrangements to the appellant or cross-appellant. Subsection (7)(c) recreates former s. 809.16(4). Subsection (7)(d) recreates former s. 809.16(5).

SECTION 809.13 of the statutes is amended to read:

809.13 Rule (Intervention). A person who is not a party to an appeal may file in the court a petition to intervene in the appeal. A party may file a response to the petition within seven (7) 11 days after service of the petition. The court may grant the petition upon a showing that the petitioner's interest meets the requirements of s. 803.09(1) or (2).

COMMENT to Section 809.13: The 7-day time limit has been changed to 11 days. Please see the comment to s. 808.07(6) concerning time limits.

SECTIONS 809.14(1) and (2) of the statutes are amended to read:

809.14 (1) A party seeking an order or other relief in a case shall file a motion for the order or other relief. The motion must state the order or relief sought and the grounds on which the motion is based and may include a statement of the position of other parties as to the granting of the motion. A motion may be supported by a memorandum. Any other party may file a response to the motion within 7 11 days after service of the motion.

(2) A motion for a procedural order may be acted upon without a response to the motion. A party adversely affected by a procedural order entered without having had the opportunity to respond to the motion may move for reconsideration of the order within 7 11 days after service of the order.

SECTION 809.14(3) is repealed and recreated to read:

809.14 (3)(a) The filing of a motion seeking an order or other relief which may affect the disposition of an appeal or the content of a brief, or a motion seeking consolidation of appeals, automatically extends the time for performing an act required by these rules for a period coextensive with the time between the filing of the motion and its disposition.

(b) The filing of a motion to supplement or correct the record automatically extends the time for performing an act required by these rules for a period coextensive with the time between the filing of the motion and its disposition. If a motion to correct or supplement the record is granted, time limits for performing an act required by these rules shall be tolled from the date on which the motion was filed until the date on which the supplemental or corrected record return is filed, except that the time for preparation of supplemental or corrected transcripts is governed by s. 809.11(6)(a).

(c) The clerk of the circuit court shall be served with a copy of any motion filed under this subsection.

COMMENT to Section 809.14: The 7-day time limits in subs. (1) and (2) have been changed to 11 days. Please see the comment to s. 808.07(6) concerning time limits. Subsection (3)(a) was revised to include consolidation motions within the tolling provision. Subsection (3)(b) creates a tolling provision when a motion to supplement or correct the record is filed. Subsection (3)(c) creates a service requirement for motions affecting the time limits for transmittal of the record.

SECTION 809.15(2) of the statutes is amended to read:

(2) Compilation and approval of the record. The clerk of the trial circuit court shall assemble the record in the order set forth in sub. (1)(a), identify by number or letter each paper, and prepare a list of the numbered or lettered papers. At least 10 days prior to the due date for filing the record in the court, the clerk shall notify in writing each party appearing in the trial circuit court that the record has been assembled and is available for inspection. The clerk shall include with the notice the list of the papers constituting the record.

SECTION 809.15(3) of the statutes is amended to read:

809.15(3) Defective record. A party who believes that the record, including the transcript of the reporter's notes, is defective or that it does not accurately reflect what occurred in the trial circuit court may move the court in which the record is located to supplement or correct the record. Motions under this subsection may be heard under s. 807.13.

SECTION 809.15(4) of the statutes is repealed and recreated to read:

809.15(4)(a) Transmittal of the record. The clerk of the circuit court shall transmit the record to the court within 20 days after the date of the filing of the transcript designated in the statement on transcript or within 20 days after the date of the filing of a statement on transcript indicating that no transcript is necessary for prosecution of the appeal, unless the court extends the time for the transmittal of the record or the tolling provisions of s. 809.14(3) extend the time for transmittal of the record.

(b) Late transcript. If the reporter fails to file the transcript within the time limit specified in the statement on transcript, the clerk of the circuit court shall transmit the record not more than 90 days after the filing of the notice of appeal, unless the court extends the time for the filing of the transcript of the reporter's notes. If the court extends the time for the filing of the transcript of the reporter's notes, the clerk of the circuit court shall transmit the record within 20 days after the date of the filing of the transcript.

(c) Supplementation or correction of record. Notwithstanding (a) and (b), if a motion to supplement or correct the record is filed in the circuit court, the clerk of the circuit court may not transmit the record until the motion is determined. A copy of any motion to supplement or correct the record that is filed in the circuit court shall be sent to the clerk. The circuit court shall determine by an order the motion to supplement or correct the record within 14 days of its filing or the motion is considered to be denied and the clerk of the circuit court shall immediately enter an order denying the motion and shall transmit the record to the court within 20 days after entry of the order. If the court grants the motion, the clerk of the circuit court shall transmit the supplemented or corrected record to the court within 20 days after the entry of the order or the filing of the supplemental or corrected record, whichever is later.

SECTION 809.15(5) of the statutes is created to read:

809.15(5) Notice of filing of record. The clerk of the court shall notify the clerk of the circuit court and all parties appearing in the circuit court of the date the record was filed.

COMMENT to Section 809.15: Subsection (2) was amended to require that numbers be used to identify the contents of the record. Subsection (4)(a) recreates the general rule for record transmittal from former sub. (4). Exceptions to the general rule are set forth in subs. (4)(b) and (c). Subsection (5) recreates the last sentence of former sub. (4).

SECTION 809.16 of the statutes is repealed.

COMMENT: This entire section has been eliminated and consolidated into the revision to s. 809.11.

SECTION 809.17 of the statutes is amended to read:

809.17 (title) Expedited appeals program, voluntary alternative dispute resolution and presubmission conference.

(1) In order to minimize appellate delay and reduce its backlog, the court of appeals may develop an expedited appeals program. The program may involve mandatory completion of docketing statements by appellant's counsel and participation in presubmission conferences at the direction of the court, but participation in the court's accelerated briefing and decision process is voluntary. The rules and procedures governing the program shall be set forth in the court of appeals' internal operating procedures.

(2) The court of appeals may establish an appellate mediation program and make and enforce all rules necessary for the prompt and orderly dispatch of the business of the program. Participation in the appellate mediation program is voluntary, but the program may involve mandatory participation in the presubmission conferences at the direction of the court. Only those cases in which a docketing statement is required to be filed under s. 809.10(1)(a) are eligible for participation in the appellate mediation program. The parties to the appeal shall pay the fees of a mediator providing services under the program, unless those fees are waived or deferred by the court. The rules and procedures governing the program shall be set forth in the court of appeals' internal operating procedures.

(3) The court of appeals may require all attorneys of record in any appeal to participate in a presubmission conference, either by telephone or in person, with an officer of the court. An attorney of record with no direct briefing interest in the appeal may waive his or her participation in the conference by written notice to the court.

SECTION 809.19(1)(h) and (i) of the statutes are created to read:

(h) The attorney who files a brief shall sign it. If a party who is not represented by an attorney files a brief, that party shall sign it.

(i) Briefs shall refer to parties by name, rather than by party designation, throughout the argument section.

SECTION 809.19(3)(a) of the statutes is amended to read:

809.19(3) Respondent's brief. (a) The respondent shall file a brief within 30 days after the later of the following events: the date of the service of the appellant's brief or the date on which the court accepts the appellant's brief for filing. If the date of service is later than the date of filing and if service is accomplished by mail, 3 additional days shall be added to the 30-day period for filing the respondent's brief, under s. 801.15(5)(a). The brief must conform with sub. (1), except that the statement of issues and the statement of the case may be excluded.