New Rules of Appellate Procedure

Marla J. Stephens

On April 30, 2001, the Wisconsin Supreme Court entered an order amending the rules of appellate procedure upon the petition of the Wisconsin Judicial Council.1 Beginning in 1997, the Judicial Council's Appellate Procedure Committee solicited and reviewed suggestions for changes to the appellate rules. After numerous drafts of proposals were circulated among advisory committee members for comment, the full Council unanimously approved the rule change petition that was filed with the court in February 2000.

In an effort to make the rules easier to find and understand, subsections and titles were created and unnecessary language was deleted. In addition, case law affecting appellate procedure was incorporated into the rules. Judicial Council Notes explaining the changes are contained in the order for informational purposes. This article will summarize the amendments to existing rules and highlight the new rules that are effective on July 1, 2001. Changes that apply to all appeals will be noted first, followed by changes to the rules governing termination of parental rights appeals2 and the rules governing criminal, civil commitment, protective placement, children's code and juvenile justice code appeals.3 Finally, the status of several proposals in the Judicial Council's petition that are still pending will be discussed.

Summary of Changes to Rules 808 and 809

Time limits. Most time limits that were 7 days are now 11 days, and most time limits that were 10 days are now 14 days.4 The new time limits remove the impact of Wis. Stat. § 801.15(5)(a) (when calculating time limits of less than 11 days, Saturdays, Sundays and holidays are excluded) and assist the court in automating its calculations of accurate deadlines.5 The time limits in Wis. Stat. §§ 809.105 (parental consent to abortion appeal) and 809.107 (termination of parental rights appeal) have not been enlarged.

Defect in notice of appeal. An inconsequential error in the content of the notice of appeal is not a jurisdictional defect.6 This rule codifies existing caselaw.7

Transcript preparation time limits and requests. Former Wis. Stat. §§ 809.11(4) and 809.16 contained the rules governing requests for transcripts and preparation of transcripts. Former rule 809.16 has been repealed, and its contents can now be found in rule 809.11(4)-(7). The appellant now has 14 days (increased from 10 days) after filing the notice of appeal to request transcripts for the other parties to the appeal and to file and serve the statement on transcript.8 A court reporter has 5 days within which to sign and return to the appellant a certification that the appellant has requested transcripts for the other parties to the appeal and arranged to pay for the copies.9 Within 14 days (increased from 10 days) of the filing of the statement on transcript, any other party to the appeal may file and serve a designation of additional transcripts to be included in the record on appeal. The appellant must then file a supplemental statement on transcript, or the other party may move the circuit court for an order requiring the appellant to do so.10 These requirements also apply to a cross-appellant.11 Court reporters have 60 days to file and serve the transcripts identified in the appellant's statement on transcript and 20 days to file and serve transcripts following a request or order for supplementation.12 Wis. Stat. §§ 809.11(4)-(7) do not apply in parental consent to abortion and termination of parental rights appeals.13

Alternative dispute resolution in the court of appeals. The court of appeals is authorized to establish an appellate mediation program.14 Participation in the appellate mediation program is voluntary, but participation in presubmission conferences may be mandatory.15 Only cases in which a docketing statement is required under Wis. Stat. § 809.10(1)(d) are eligible to participate in the program.16 Mediation is therefore not available in appeals brought under Wis. Stat. § 809.105 (parental consent to abortion), § 809.107 (termination of parental rights), § 809.32 (no merit report), or in criminal cases. The parties to the appeal shall pay the fees of a mediator providing services under the program, unless the fees are waived or deferred by the court.17 The rules and procedures governing the program shall be set forth in the court of appeals internal operating procedures.18 Any form of alternative dispute resolution, as defined in Wis. Stat. § 802.12(1), may be utilized.

Time limits tolled pending resolution of motions. The following motions toll the time for performing any act under the rules of appellate procedure from the date the motion is filed until the date the motion is decided by an order: a motion seeking an order affecting the disposition of an appeal or the content of a brief, a motion seeking to supplement or correct the record on appeal, and a motion seeking consolidation of cases.19 If a motion to supplement or correct the record is filed in circuit court, the clerk of circuit court may not transmit the record until the motion has been decided.20 The motion to supplement or correct the record is deemed denied if not decided within 14 days after it is filed.21 If a motion to supplement or correct the record is granted, time limits continue to be tolled until the supplemental record return is filed.22 A copy of any motion to supplement or correct the record filed in circuit court must be served on the clerk of the court of appeals.23 The clerk of circuit court must be served with a copy of any motion filed under § 809.14 in the court of appeals because the motion tolls time limits.24

Number of briefs. The number of briefs to be filed in the supreme court remains at 22, the number of briefs to be filed in the court of appeals remains at 10, and the number of copies of briefs that must be served on the other parties to the appeal remains at 3.25 An indigent party appearing without an attorney, or a prisoner appearing without an attorney allowed to proceed without prepayment of fees under § 814.29(1m)(Prisoner Litigation Reform Act), must file 5 briefs in the court of appeals and serve one copy on the other parties in a three-judge appeal, and must file 3 briefs in the court of appeals and serve one copy on the other parties in a one-judge appeal.26

Brief covers. Brief captions must include the names of all parties in the circuit court and indicate the status of the party in the circuit court and the appellate court, if any.27 For example, supreme court briefs should state party designations from the circuit court, court of appeals and supreme court, if applicable: Jane Doe, Defendant-Appellant-Petitioner.

Confidentiality. If a person is entitled to confidentiality under the law, the person must be identified by first name and last initial in all documents filed with the court.28 The subjects of proceedings under chapters 48 (Children's Code), 51 (civil commitment), 55 (protective placement), 938 (Juvenile Justice Code) and in paternity cases are entitled to confidentiality. Different confidentiality and anonymity requirements apply in parental consent to abortion appeals.29

Signature on briefs. An attorney who files a brief must sign it. If an attorney does not represent a party, that party must sign the brief.30

References to parties within the brief. Parties must be referred to by name throughout the argument section, not by their status on appeal or their party designation.31

Reply briefs. Reply briefs must contain citations to the record and a conclusion.32

Authorized methods of brief binding. Velobinding is added to stapling and hot glue (or "perfect" binding) as an authorized binding method. The clerk of court must authorize any other binding method before the brief is filed.33

Time limits for respondent's brief and reply brief. The respondent's brief must be filed within the later of: 30 days after service of the appellant's brief, plus 3 days if service is by mail; or 30 days after the appellant's brief is accepted for filing by the clerk of the court of appeals.34 The appellant's reply brief is due on the later of: 15 days after service of the respondent's brief, plus 3 days if service is by mail; or 15 days after the respondent's brief is accepted for filing by the clerk.35

Briefing cross-appeals. The cross-appeal briefing requirements have been rewritten for clarification.36

Limitation of issues in appeal of non-final order. If a petition for leave to appeal a non-final order is granted, the court of appeals may specify the issue or issues it will review.37

Citation of supplemental authority. If new authority is issued after briefing or after oral argument, but before decision, a party may notify the court by sending a letter to the clerk with a copy to the other parties to the appeal.38 The letter must state the citation for the new authority, identify the page of the brief or point of oral argument to which it pertains, and briefly discuss the proposition that the authority supports.39 If the new authority is a court of appeals opinion, it is considered issued on the date that publication of the opinion is ordered.40 A response letter may be sent to the clerk, with copies to the other parties to the appeal, within 11 days after the supplemental authority letter is served.41 The response letter must briefly discuss why the supplemental authority does not support the stated proposition.42

Objections to circuit court judgment or order entered after remand. If an appellate court remands the record to the circuit court for action upon specific issues, or for additional proceedings while the appeal is pending, the appellate court, in the pending appeal, may review the judgment or order that the circuit court entered following the remand.43 A party must file in the appellate court a written statement of objections to the circuit court judgment or order within 14 days after the record is returned to the appellate court.44 A party that files a written statement of objections need not file a notice of appeal or cross-appeal.45 The obligations of a person filing a statement of objections are the same as those of a cross-appellant.46 The statement of objections should advise the court whether and how the issues have changed after the remand.

Reconsideration of a court of appeals opinion or order. A party may file a motion for reconsideration in the court of appeals within 20 days after the date of a decision or order.47 The motion must state with particularity the points of law or fact alleged to be erroneously decided and must include a supporting argument.48 No response to the motion may be filed unless ordered by the court.49 An amended decision or order will not be issued unless the court first orders a response.50 The motion and any response shall not exceed 5 pages in monospaced font or 1,100 words in proportional serif font.51 In response to a motion for reconsideration, the court shall either issue an amended decision or order, or the court shall issue an order denying the motion.52 The court may also reconsider a decision or order on its own motion at any time prior to remittitur if no petition for review is filed, or within 30 days after a petition for review is filed in the supreme court.53 No motion for reconsideration is permitted in a § 809.105 (parental consent to abortion) case.54 The time limit for filing a motion for reconsideration may not be enlarged.55 Remittitur is stayed pending resolution of the motion for reconsideration.56 Warning: the time limit for filing a petition for review in the supreme court is not tolled by filing a motion for reconsideration.

Petition for Review. Both the petition for review and the response to the petition for review must have white covers.57 Ten copies of each must be filed with the clerk of the supreme court.58    

Sanctions. The court of appeals may sanction a party who violates an order of the court.59

Termination of Parental Rights (TPR) Appeals - transcript and circuit court case record request, transcript preparation, notice of appeal and transmittal of record. The circuit court case record and the transcript of the reporter's notes must be requested by a person who files a Notice of Intent to Appeal within 15 days after filing the Notice of Intent to Appeal.60 The transcript must be served on that person and filed in circuit court, and the circuit court case record must be served on that person, within 30 days after the request.61 The person must file and serve a notice of appeal within 30 days after service of the transcript.62 The clerk of circuit court must transmit the record on appeal to the court of appeals within 15 days after the notice of appeal is filed.63

TPR appeals - statement on transcript. The appellant must request copies of the transcript for the other parties to the appeal, and make arrangements to pay for the copies, within 5 days after filing the notice of appeal.64 The appellant's statement on transcript, containing the court reporter's certification that the appellant ordered transcript copies for the other parties to the appeal and made arrangements to pay for the copies, must be filed in the court of appeals and served on the other parties to the appeal and the clerk of the circuit court within 5 days after filing the notice of appeal.65 The court reporter must serve copies of the transcript on the other parties to the appeal within 5 days after the appellant's request.66

TPR appeals – no-merit procedure. A no-merit report, response to no-merit report and supplemental no-merit report under Wis. Stat. § 809.32 may be filed in a TPR appeal.67 The no-merit time limits track the briefing time limits in Wis. Stat. § 809.107(6). The appointed attorney must file the no-merit report and certification, and serve copies of the no-merit report, certification and the record on appeal on the client-parent within 15 days after the record on appeal is filed.68 The client-parent may file a response to the no-merit report within 10 days after service of the no-merit report.69 Within 5 days after a response to the no-merit report is filed, the clerk of the court of appeals must send a copy of the response to the appointed attorney.70 The appointed attorney may file a supplemental no-merit report and affidavits within 10 days after receiving the response to the no-merit report.71

TPR appeals - ineffective assistance of counsel claims, and other claims requiring post-judgment fact-finding. If the appellant intends to appeal on any ground that requires fact-finding after entry of the final judgment or order in the circuit court, the appellant must file a motion in the court of appeals raising the issue and asking the court to retain jurisdiction over the appeal and remand the case to the circuit court to hear and decide the issue.72 The motion must be filed within 15 days after the record on appeal is filed.73 If the court of appeals grants the motion, it shall set time limits for the circuit court to hear and decide the issue, for the appellant to request a transcript of the remand proceedings, and for the court reporter to file and serve the transcript of the remand proceedings, and extend the time limit for the appellant to file a brief presenting all grounds for relief in the pending appeal.74

Rule 809.30 appeals – time limit for state public defender's appointment of counsel and requests for circuit court case record and transcript. The state public defender must appoint counsel and request a transcript of the reporter's notes and a copy of the circuit court case record within 30 or 50 days after the state public defender receives from the clerk of the circuit court a file-stamped copy of the notice of intent to pursue postconviction relief, a file-stamped copy of the judgment or order specified in the notice of intent, a list of court reporters for the circuit court proceedings and a list of any transcripts in the circuit court file.75 The state public defender must appoint counsel within 30 days after receipt of the clerk's materials if indigence does not need to be re-determined, and within 50 days after receipt of the clerk's materials if indigence must be determined or re-determined.76

Rule 809.30 appeals – time limit for person denied state public defender representation to request circuit court case record and transcript. A person who is denied representation by the state public defender must request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 90 days after filing the notice of intent to pursue postconviction relief.77

Rule 809.30 appeals – service of circuit court case record and transcript. The clerk of circuit court must serve a copy of the circuit court case record, and the court reporter must file and serve the transcript, within 60 days of a request to do so.78

Rule 809.30 appeals – notice of appeal. The notice of appeal must state the last date of service of the copy of the transcript or the circuit court case record if no postconviction motion is filed, the date of the order determining the postconviction motion, or the date of any other notice of appeal deadline that was set by the court of appeals.79 A copy of the order appointing counsel must be attached if counsel was appointed by the state public defender.80

Rule 809.30 appeals – postconviction motion. A notice of motion should not be filed with a postconviction motion.81 A postconviction motion is deemed denied if it is not determined by the circuit court within 60 days after it is filed, unless the court of appeals extends the time limit for decision at the request of the defendant or the circuit court.82

Rule 809.30 appeals – motion to withdraw as appointed counsel. An attorney appointed by the state public defender who seeks to withdraw from the case must file a motion to withdraw and serve a copy of the motion on the client and on the state public defender appellate intake unit in the Madison appellate office.83 The motion must be filed in the circuit court if no notice of appeal has been filed.84 If a notice of appeal has been filed, the motion must be filed in the court of appeals.85 Within 20 days after the motion is served, the state public defender must determine whether successor counsel will be appointed for the client, and notify the court of its determination.86 Before granting the motion to withdraw, the court shall consider the state public defender's determination and whether the client waives the right to counsel.87 Ordinarily, a disagreement between the client and appointed counsel about the merits of an appeal will not present grounds for withdrawal.88 When the motion to withdraw is filed in circuit court, the attorney must prepare and serve a copy of the order determining the motion to withdraw upon the client and the appellate intake unit in the Madison appellate office of the state public defender.89 The order must be served within 14 days after the circuit court decides the motion to withdraw.90 The withdrawal procedure is not intended to change existing law concerning when a withdrawal motion is required.91

 Review of circuit court order determining release from custody pending appeal. The defendant or the state may seek review of a circuit court order concerning release on bond pending seeking postconviction relief or pending appeal.92 The motion must be filed within 14 days after the entry of the circuit court order.93 The party seeking review must attach to the motion: a copy of the judgment of conviction or other final judgment or order, a copy of the order regarding release, the circuit court's statement of reasons for its release decision, and the transcript of any release proceedings in the circuit court or a statement explaining why no transcript is available.94 The opposing party may file a response to the motion within 14 days after the motion is filed.95

 No-merit procedure – when applicable. The no-merit procedures are required only on direct appeal.96 A no-merit report must be filed when the client requests a no-merit report or when the client declines to consent to have the appointed attorney close the file without further representation by the attorney.97

No-merit procedure – notice of appeal, statement on transcript and no-merit report. The notice of appeal must be identified as a no-merit notice of appeal and must state the date on which the no-merit report is due and how the date has been calculated.98 The no-merit notice of appeal, statement on transcript and no-merit report must be filed either 180 days after the last transcript is received,99 or 60 days after the entry of an order determining a postconviction motion.100 Copies of the transcript are not required for the other parties to the appeal.101 Copies of the notice of appeal and statement on transcript must be served on the state.102

No-merit procedure – copies of transcript and circuit court case record for client. If a no-merit report is filed, the attorney must serve copies of the transcript and the circuit court case record on the client within 14 days after receiving a request from the client for the copies.103 The attorney must file a statement in the court of appeals that service of the copies has been made upon the client.104

No-merit procedure – client counseling and notification requirements, certification of compliance. Before filing a no-merit report, the attorney must discuss with the client all potential issues identified by the attorney and by the client, and the merit of an appeal on these issues.105 The attorney must inform the client that the client has three options: to have the attorney file a no-merit report, to have the attorney close the file without an appeal, or to have the attorney close the file and to proceed with an appeal without an attorney or with another attorney retained at the client's expense.106 The attorney must inform the client that a no-merit report will be filed if the client requests it or if the client does not consent to have the attorney close the file without further representation by the attorney.107 The attorney must inform the client that, if a no-merit report is filed, the attorney will serve a copy of the transcripts and the circuit court case record on the client if the client so requests.108 The attorney must inform the client that, if the client chooses to proceed with an appeal or if the client chooses to have the attorney close the file without an appeal, the attorney will forward the attorney's copies of the transcripts and the circuit court case record to the client if the client so requests.109 The attorney must inform the client that the client may file a response to the no-merit report, and that if the client files a response, the attorney may file a supplemental no-merit report, and affidavit or affidavits containing facts outside the record, possibly including confidential information, to rebut allegations in the client's response to the no-merit report.110 Finally, the attorney must append to the no-merit report a signed certification that the attorney has complied with these counseling and notification requirements.111 A form for the certification is contained in the new rule.112

No-merit procedure – response to no-merit report. If a client files a response to the no-merit report, the clerk of the court of appeals shall, within 5 days after the response is filed, send a copy of the response to the attorney.113

No-merit procedure – supplemental no-merit report. If the attorney is aware of facts outside the record that rebut allegations in the client's response to the no-merit report, the attorney may file a supplemental no-merit report and affidavit or affidavits including facts outside the record.114 A supplemental no-merit report and affidavit or affidavits must be filed and served on the client within 30 days after the attorney receives a copy of the client's response to the no-merit report.115 The attorney must file a statement in the court of appeals that service has been made upon the client.116

No-merit procedure – remand to circuit court for fact-finding prior to decision. If the client and the attorney allege disputed facts regarding matters outside the record, and if the court of appeals determines that the client's version of the facts, if true, would raise an arguably meritorious issue for appeal, the court of appeals must remand the case to the circuit court for an evidentiary hearing and fact-finding on the disputed facts before deciding whether to accept or reject the no-merit report.117

Summary of pending proposals

Appeal in ch. 980 (sexually violent person commitment) and § 971.17 (not guilty by reason of mental disease or defect commitment) proceedings. The Judicial Council petitioned for a rule change allowing these appeals to proceed under the criminal appellate rules set forth in Wis. Stat. §§ 809.30-.32, which govern other appeals (under ch. 48, 51, 55 and 938 and in criminal cases) in which the state public defender provides representation. The supreme court determined that this proposal exceeds its rule making authority, and the Judicial Council has requested legislation to enact this proposal. The Council's request for legislation would affect §§ 808.04(3) and (4), 809.30(1) and (2), 809.40(1) and create §§ 971.17(7m) and 980.061. The supreme court has taken this proposal under advisement pending legislative action.

Suppression issues in ch. 48 and 938 cases. The Judicial Council petition requested a rule allowing suppression of evidence issues to be raised on appeal following an admission to a petition in a ch. 48 or 938 case. Under current law, these issues are waived by the entry of an admission and must be preserved by taking the case to trial. The proposal would extend the exception to the waiver rule in criminal cases to cases under the children's and juvenile justice code. The supreme court determined that this proposal exceeds its rule making authority, and the Judicial Council has requested legislation to enact it. The legislation request would create § 809.40(4). The supreme court has taken this proposal under advisement pending legislative action.

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. The Judicial Council petition proposed a rule that would toll the time limit for filing a petition for review until the court of appeals disposes of a timely filed motion for reconsideration of its opinion or order. The supreme court determined that this proposal exceeds its rule making authority, and the Judicial Council has requested legislation to enact it. The legislation request proposes amendments to §§ 808.10, 809.62(1) and 809.32(4) and the creation of § 808.10(2). The supreme court has also taken this proposal under advisement pending legislative action.

Mailbox rule – briefs deemed filed upon mailing. The supreme court has deferred a decision on this Judicial Council proposal until it decides State ex rel. Nichols v. Litscher, case no. 00-0853-W (Issue: should Wisconsin adopt a "mailbox rule" whereby a petition for review from a pro se prisoner would be deemed filed when the petition is delivered to the prison authorities for mailing?). The Council's petition proposed the creation of §§ 809.80(3)(b)-(5): a brief would be timely filed if, on or before the last day for filing, the brief was deposited in the U.S. mail for first class delivery or more expeditious means, or if the brief was dispatched to a third-party commercial carrier for delivery to the clerk within 3 calendar days. An affidavit of mailing or dispatch would be required. A brief from a person in an institution would be timely filed if, on or before the last day for filing, it was deposited in institution's internal mail system. An affidavit or certification of mailing would be required. The proposed rule would not apply to petitions for review.

Additional resources and acknowledgements.

Additional materials and information about the revisions to the appellate rules can be found at the State Bar of Wisconsin's Appellate Practice Section web site

     The Judicial Council Appellate Procedure Committee members included the Hon. Ted E. Wedemeyer, Jr., Presiding Judge, Court of Appeals, District I, co-chair; Marla J. Stephens, Director, Wisconsin Public Defender Appellate Division, co-chair; Mary E. Burke, Director, Wisconsin Department of Justice Criminal Appeals Unit; and Margaret Carlson, Chief Staff Attorney, Court of Appeals. Advisory committee members, who drafted, reviewed or suggested changes in the rules, were: Shelley A. Grogan, Judicial Clerk to Judge Wedemeyer; Hon. Daniel P. Anderson, Judge, District II Court of Appeals; Marilyn L. Graves, Clerk of Supreme Court and Court of Appeals; Cornelia G. Clark, Clerk of Supreme Court and Court of Appeals; Joseph M. Wilson, Supreme Court Commissioner; Matthew J. Frank, Administrator, Wisconsin Department of Justice Legal Services Division; Kenneth Lund, Deputy First Assistant, Wisconsin Public Defender Appellate Division; Keith A. Findley, University of Wisconsin Law School; Robert R. Henak, Henak Law Offices, S.C., for the Wisconsin Association of Criminal Defense Lawyers; Patrick K. Stevens, Wisconsin Manufacturers & Commerce; Lynn R. Laufenberg, Laufenberg Law Offices; Charles H. Barr, Croen & Barr, for Milwaukee Bar Association Bench & Bar Court of Appeals Committee; Thomas McAdams, Assistant District Attorney for Milwaukee County, for Wisconsin District Attorney's Association; Robert D. Donohoo, Deputy District Attorney for Milwaukee County; Werner E. Scherr, Kasdorf, Lewis & Sweitlik, S.C.; Thomas M. Olson, S.C., The Law Center; Elizabeth Ewald Herrick, Attorney at Law; and Donald L. Romundson, Godfrey & Kahn, S.C., for the Appellate Practice Section, State Bar of Wisconsin. The Judicial Council gratefully acknowledges their contributions.

Endnotes

Wisconsin Lawyer