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Vol. 74, No. 6, June 2001
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Supreme Court Orders
The Wisconsin Supreme Court amended the rules of appellate procedure upon
petition of the Wisconsin Judicial Council. To make the rules easier to
find and understand, subsections and titles were created and unnecessary
language was deleted. Case law affecting appellate procedure also was incorporated
into the rules. The court also implemented SCR 75 regarding court commissioners
and has amended SCR Chapter 60 regarding the Code of Judicial Conduct –
Appendix.
Amendment
of the Rules of Appellate Procedure
In the Matter of the Amendment of the Rules of Appellate Procedure:
Wis. Stat. §§ 808.04(1); 808.07(6); 808.075(2) and (8); 809.01(5); 809.10(1);
809.107(4), (5), (5m), (6) and (6am); 809.11(4) to (8); 809.13; 809.14(1),
(2) and (3); 809.15(2) to (4m); 809.16; 809.17; 809.19(1), (3), (4), and
(6) to (11); 809.24; 809.25(1) and (3); 809.26; 809.30(2) to (4); 809.31(5);
809.32(1) to (4); 809.40(3); 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) and (4); 809.64;
809.70(2); 809.80(1); 809.81(2) and (8); 809.82(2); 809.83(2)
Order
00-02
The court held a public hearing on Oct. 23, 2000, on the petition of
the Judicial Council of Wisconsin seeking the amendment of the rules of
appellate procedure set out in Wis. Stats. chapters 808 and 809. The court
has considered the presentation made at that public hearing and the material
filed in the matter.
IT IS ORDERED that, effective July 1, 2001,
the rules of appellate procedure are amended as follows.
SECTION 1.
808.04 (1) of the statutes is amended to read:
808.04 (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 nonfinal judgment or order are established in s. 809.50.
Judicial Council Note, 2001: The word "final" has been
inserted before "judgment or order" in sub. (1). The amendment specifies
that the 45- or 90-day time limit applies in appeals from final orders
and the 10-day time limit in s. 809.50 applies to appeals from nonfinal
orders.
SECTION 2. 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.
Judicial Council Note, 2001: This is the first of 15
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 ch. 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 calculation 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 3. 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 4. 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 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.
Judicial Council Note, 2001: 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 intended to clarify procedure
following a remand and to eliminate an additional notice of appeal or
cross-appeal. The obligations of a person filing a statement of objections
are the same as those of a cross-appellant.
SECTION 5. 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 6. 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 of whether the appeal
arises in one of the types of cases specified in s. 752.31 (2).
4. A statement of whether the appeal
is 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 the circuit court case record if no postconviction 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 that 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 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
docketing statement shall accompany the court of appeals' copy of the
notice of appeal. The person shall send a copy of the completed docketing
statement to the other parties to the appeal. Docketing statements need
not be filed in appeals brought under s. 809.105, 809.107, 809.32, or
974.06 (7), or in cases in which a party represents himself or herself.
Docketing statements need not be filed in appeals brought under s. 809.30
or 809.40 (1), except that a docketing statement shall be filed in
cases arising under chs. 48, 51, 55, or 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.
Judicial Committee Note, 2001: 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) 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).
Please see s. 809.32 for special requirements for a Notice of Appeal
in a No-Merit Report appeal.
SECTION 7. 809.107 (4) of the statutes
is amended to read:
809.107 (4) Transcript
and circuit court case record. A person filing a notice of intent to
appeal under sub. (2) shall order request a transcript of
the reporter's notes and a copy of the circuit court case record
within 15 days after filing the notice. The court reporter shall file
the transcript with the trial circuit court and serve a
copy of the transcript on the person filing the notice of intent to appeal
within 30 days after the ordering of the transcript is requested.
The clerk of circuit court shall serve a copy of the circuit court case
record on the person filing the notice of intent to appeal within 30 days
after the court record is requested.
SECTION
8. 809.107 (5) of the statutes is repealed and recreated to read:
809.107 (5) Notice
of appeal; transmittal of 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 circuit 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) Requesting transcripts. 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 after the filing of
the notice of appeal.
(d) Statement on transcript. The
appellant shall file a statement on transcript with the clerk of the court
of appeals, shall file a copy of the statement on transcript with the
clerk of circuit court, and shall serve a copy of the statement on transcript
on the other parties to the appeal within 5 days after 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 under par. (c).
SECTION
9. 809.107 (5m) of the statutes is created to read:
809.107 (5m) No-merit reports. A s. 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 of appeals and serve on the client-parent the
no-merit report and certification within 15 days after the filing of the
record on appeal. The appointed attorney shall serve on the client-parent
a copy of the transcript and the record on appeal at the same time that
the no-merit report is served on the client-parent. The client-parent
may file in the court of appeals a response to the no-merit report within
10 days after service of the no-merit report. Within 5 days after the
response to the no-merit report has been filed in the clerk's office,
the clerk shall send a copy of the response to the appointed attorney.
The attorney may file a supplemental no-merit report and affidavit within
10 days after receiving the response to the no-merit report.
SECTION
10. 809.107 (6) (a) (title), (b) (title), (c) (title),
(d) (title), (e) (title), and (f) (title) of the statutes
are created to read:
809.107 (6) (titles).
(a) (title) Appellant's brief-in-chief.
(b) (title) Respondent's brief.
(c) (title) Appellant's reply
brief.
(d) (title) Guardian ad litem's
brief.
(e) (title) Decision.
(f) (title) Petition for review.
SECTION
11. 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 postjudgment 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.
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.
Judicial Council Note, 2001: Titles and subtitles were
added. Subsection (4) is amended to require that the person who files
a notice of intent to appeal must request a copy of the circuit court
case record within 15 days after filing the notice of intent to appeal.
Subsection (4) also requires the clerk of the circuit court to serve a
copy of the circuit court case record upon the person requesting it within
30 days after the date of the request.
Former sub. (5) is recreated
as subs. (5) (a) and (b).
Subsection (5) (c) requires
the appellant to request a copy of the transcript for the other parties
to the appeal, and to make arrangements to pay for those copies, within
5 days after filing the notice of appeal.
Subsection (5) (d) requires
the appellant to file a statement on transcript within 5 days after filing
the notice of appeal.
Subsection (5) (e) requires
the court reporter to serve copies of the transcript on the other parties
to the appeal within 5 days after the appellant requests the copies.
Subsection (5m) 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) 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
12. 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 after the filing of
the notice of appeal.
(b) The appellant shall file a statement
on transcript with the clerk of the court of appeals, shall file a copy
of the statement on transcript with the clerk of circuit court, and shall
serve a copy of the statement on transcript on the other parties to the
appeal within 14 days after 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.
SECTION
13. 809.11 (5) to (7) of the statutes are created to read:
809.11 (5) Additional
portions of transcript. Within 14 days after filing of a statement
on transcript as required under sub. (4), any other party may file a designation
of additional portions to be included in the transcript and serve a copy
of the designation on the appellant. Within 14 days after the filing 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 request the designated portions.
(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 circuit court, and notify the clerk of the court of
appeals within 60 days after the date on which 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 circuit court, and notify the clerk of
the court within 20 days after 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 filing 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 of appeals 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.
Judicial Council Note, 2001: 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
14. 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 of appeals
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).
Judicial Council Note, 2001: The 7-day time limit has
been changed to 11 days. Please see the comment to s. 808.07 (6)
concerning time limits.
SECTION
15. 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 of 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 of after service of the order.
SECTION 16. 809.14 (3)
of the statutes 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 tolls the time for performing
an actrequired by these rules from the date the motion
was filed until the date the motion is disposed of by order.
(b) The filing of a motion to supplement
or correct the record automatically tolls the time for performing an act
required by these rules from the date the motion was filed until the date
the motion is disposed of by order. 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 (7) (a).
(c) The moving party shall serve
the clerk of circuit court with any motion filed in the court of appeals
under this subsection.
Judicial Council Note, 2001: 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
17. 809.15 (2) and (3) of the statutes are amended to
read:
809.15 (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
before 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.
(3) Defective record. A party who believes
that the record, including the transcript of the reporter's notes,
is defective or that the record 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 18. 809.15 (4)
of the statutes is repealed and recreated to read:
809.15 (4) Processing the record. (a) Transmittal
of the record. The clerk
of circuit court shall transmit the record to the court of appeals 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 transmittal
of the record or unless 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 circuit court shall transmit
the record not more than 90 days after the filing of the notice of appeal,
unless the court of appeals extends the time for filing the transcript
of the reporter's notes. If the court extends the time for filing the
transcript of the reporter's notes, the clerk of circuit court shall transmit
the record within 20 days after the date that the transcript is filed.
(c)
Supplementation or correction of record. Notwithstanding
pars. (a) and (b), 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 is determined. A copy of any motion to supplement
or correct the record that is filed in circuit court shall be sent to
the clerk of the court of appeals. The circuit court shall determine,
by order, the motion to supplement or correct the record within 14 days
after the filing or the motion is considered to be denied and the clerk
of circuit court shall immediately enter an order denying the motion and
shall transmit the record to the court of appeals within 20 days after
entry of the order. If the circuit court grants the motion, the clerk
of circuit court shall transmit the supplemented or corrected record to
the court of appeals within 20 days after entry of the order or filing
of the supplemental or corrected record in the circuit court, whichever
is later.
SECTION
19. 809.15 (4m) of the statutes is created to read:
809.15 (4m) Notice
of filing of record. The clerk of the court of appeals shall notify
the clerk of circuit court and all parties appearing in the circuit court
of the date on which the record was filed.
Judicial Council Note, 2001: Subsection (2) requires
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 (4m) recreates the last sentence of former sub. (4).
SECTION
20. 809.16 of the statutes is repealed.
809.16 of the statutes is repealed.
Judicial Council Note, 2001: This entire section has
been eliminated and consolidated into the revision to s. 809.11.
SECTION
21. 809.17 (title) of the statutes is amended to read:
809.17 (title) (Expedited
appeals program, voluntary alternative dispute resolution and pre-submission
presubmission conference).
SECTION
22. 809.17 (2m) of the statutes is created to read:
809.17 (2m) 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.
SECTION
23. 809.19 (1) (h) and (i) of the statutes are created to
read:
809.19 (1) (h) The
signature of the attorney who files the brief; or, if the party who files
the brief is not represented by an attorney, the signature of that party.
(i) Reference to the parties by name,
rather than by party designation, throughout the argument section.
SECTION
24. 809.19 (3) (a) of the statutes is renumbered 809.19
(3) (a) 1. and amended to read:
809.19 (3) (a) 1.
(intro.) The respondent shall file a brief within 30 days the
later of:
a. Thirty days after the date of
the service of the appellant's brief, and 3 additional days
under s. 801.15 (5) (a) if service is accomplished by mail;
or
b. Thirty days after the date on
which the court accepts the appellant's brief for filing.
2. The brief must conform with sub. (1),
except that the statement of issues and the statement of the case may
be excluded.
SECTION
25. 809.19 (4) and (6) of the statutes are repealed and
recreated to read:
809.19 (4) Reply
brief. (a) (intro.) The appellant shall file a reply brief, or
a statement that a reply brief will not be filed, within the later of:
1. Fifteen days after the date of service
of the respondent's brief, and 3 additional days under s. 801.15 (5) (a)
if service is accomplished by mail; or
2. Fifteen days after the date on which
the court accepts the respondent's brief for filing.
(b) The reply brief under par.
(a) shall comply with sub. (1) (e) and (f).
809.19 (6) Cross-appeal.
Briefing in a cross-appeal shall be as follows:
(a) An appellant-cross-respondent shall
file a brief titled "Appellant's Brief" within the time specified by,
and in compliance with, the requirements of subs. (1) and (2).
(b) 1. (intro.) A respondent-cross-appellant
shall file a brief titled "Combined Brief of Respondent and Cross-Appellant"
within the later of:
a. Thirty days after the date of service
of the appellant-cross-respondent's brief, and 3 additional days under
s. 801.15 (5) (a) if service is accomplished by mail; or
b. Thirty days after the date on which the
court accepts the appellant-cross-respondent's brief for filing.
2. The front and back covers of the combined
brief shall be red. The respondent portion of the combined brief shall
comply with the requirements of this section for a respondent's brief,
including the length limitation for such a brief set forth in sub. (8) (c) 1.
The cross-appellant portion of the combined brief shall comply with the
requirements of subs. (1) and (2) for an appellant's main brief, including
the length limitation for such a brief set forth in sub.
(8) (c) 1., except that the requirements of sub. (l) (c)
and (d) may be omitted, the cross-appellant portion of the combined brief
shall be preceded by a blank blue cover, and a signature shall be required
only at the conclusion of the cross-appellant portion of the combined
brief.
(c) 1. (intro.) An appellant-cross-respondent
shall file a brief titled "Combined Brief of Appellant and Cross-Respondent"
within the later of:
a. Thirty days after the date of service
of the respondent-cross-appellant's brief, and 3 additional days under
s. 801.15 (5) (a) if service is accomplished by mail; or
b. Thirty days after the date on which the
court accepts the respondent-cross-appellant's brief for filing.
2. The front and back covers of the combined
brief shall be gray. The appellant portion of the combined brief shall
comply with the requirements of sub. (4) for a reply brief, including
the length limitation for such a brief set forth in sub. (8) (c) 1.
The cross-respondent portion of the combined brief shall comply with the
requirements of sub. (3) for a respondent's brief, including the length
limitation for such a brief set forth in sub. (8) (c) 1., except
that the requirement of sub. (1) (c) may be omitted, the cross-respondent
portion of the combined brief shall be preceded by a blank red cover,
and a signature shall be required only at the conclusion of the cross-respondent
portion of the combined brief.
(d) (intro.) A respondent-cross-appellant
shall file either a reply brief titled "Reply Brief of Cross-Appellant"
in the form required by sub. (4) for reply briefs, or a statement that
a reply brief will not be filed, within the later of:
1. Fifteen days after the date of service
of the appellant-cross-respondent's brief, and 3 additional days under
s. 801.15 (5) (a) if service is accomplished by mail; or
2. Fifteen days after the date on which
the court accepts the appellant-cross-respondent's brief for filing.
(e) Each part of a combined brief shall
comply with the form and length certification requirements of sub. (8) (d).
SECTION
26. 809.19 (7) (c), (8) (a) and (b) 4. and (9)
of the statutes are amended to read:
809.19 (7) (c) Except as
provided in par. (b), the motion shall be filed not later than 10
14 days after the respondent's brief is filed, and the brief
shall be filed within the time specified by the court.
(8) (a) Number. 1. Except
as provided in s. 809.43, a A person who files shall
file either 22 copies of a brief or appendix in the supreme court
shall file 22 copies with the court, or such other the
number as that the court directs, and shall
serve 3 copies on each party.
2. Except as provided in subd. 3. and s.
809.43, a person who files shall file either 10 copies of
a brief or appendix in a the court of appeals shall file
10 copies with the court, or such other the number as
that the court directs, and shall serve 3 copies
on each party.
3. Except as provided in s. 809.43, a person
who is found indigent under s. 814.29 (1) and files
who is not represented by counsel shall file 5 copies of a brief
or appendix in the court of appeals shall file the original and 4 copies
with the court and shall serve one copy on each party. A
prisoner who has been granted leave to proceed without prepayment of fees
under s. 814.29 (1m) and who is not represented by counsel shall
file 5 copies of a brief or appendix in the court of appeals and shall
serve one copy on each party.
(b) 4. Securely bound only on the left
side with heavy strength staples or by means of velobinding or
the "perfect" ("hot glue") binding method, with pagination at the center
of the bottom margin. A brief may be bound by other methods another
method if authorized in writing by the clerk of the court.
809.19 (9) Brief
covers. Each brief or appendix shall have a front and back cover.
The front cover shall contain the name of the court, the caption and number
of the case, the court and judge appealed from, the title of the document,
and the name and address of counsel filing the document. Except as
provided in s. 809.81 (8), the caption shall include the full name
of each party in the circuit court and shall designate each party so as
to identify each party's status in the circuit court and in the appellate
court, if any. The covers of the appellant's brief shall be blue;
the respondent's, red; a combined respondent-cross-appellant's, red with
a blue divider page; a combined reply-cross-respondent's, gray with a
red divider page; a guardian ad litem's, yellow; a person other than a
party, green; the reply brief, gray; and the appendix, if separately printed,
white. In the event the supreme court grants a petition for review of
a decision of the court of appeals, the covers of the briefs of each party
shall be the same color as the cover of that party's briefs filed in the
court of appeals.
SECTION
27. 809.19 (10) and (11) of the statutes are created to
read:
809.19 (10) Citation
of supplemental authorities. If pertinent authorities decided after
briefing come to the attention of a party or a nonparty under sub. (7)
or a guardian ad litem under sub. (8m) after the party's or nonparty's
or guardian ad litem's brief has been filed, or after oral argument but
before decision, the party, nonparty, or guardian ad litem may promptly
advise the clerk of the court, by letter, and serve a copy of that letter
on all parties to the appeal. If the new authority is a decision of the
Wisconsin court of appeals, the authority is considered decided for purposes
of this subsection on the date of an order for publication issued under
s. 809.23 (2). The letter shall do the following:
(a) Set forth the citations for the authority.
(b) Identify the page of the brief or the
point that was argued orally to which the citations pertain.
(c) For each authority that is cited, briefly
discuss the proposition that the authority supports.
(11) Response
to supplemental authorities. A response to the letter under sub. (10)
may be filed within 11 days after service of that letter. The response
shall briefly discuss the reason why each authority does not support the
stated proposition, unless the proposition is not disputed.
Judicial Council Note, 2001: Subsection (1) (h)
requires a signature on briefs. Subsection (1) (i) makes identification
of the parties consistent and less confusing. Subsection (3) was revised
to address a situation in which the appellant's brief is served on the
respondent, but has not yet been accepted for filing by the court. If
the respondent undertakes to prepare its brief within 30 days after service
of the appellant's brief and the appellant's brief has not yet been accepted
for filing, the respondent will have wasted time and energy if the appellant's
brief ultimately is rejected. The last sentence of sub. (4) was added
to require record references and a conclusion in a reply brief.
Subsection (6) was rewritten to clarify
briefing requirements in cross-appeals. The time limit in sub. (7) (c)
was changed from 10 to 14 days. Please see the comment to s. 808.07 (6)
concerning time limits. The reference to s. 809.43 was deleted in sub.
(8)(a) 1. because the greater number of copies is needed when a single-judge
appeal reaches the supreme court. Subsection (8) (a) 3. was
amended to apply to pro se parties only. Subsection (8) (b) 4.
was amended to allow "velobinding" of briefs, a process commonly accepted
but not authorized by statute. Subsection (9) requires parties to use
the complete case caption. Parties shall not abridge the caption by use
of "et al" or similar phrases. Subsections (10) and (11) are new and establish
a procedure for supplementing briefs or oral argument with pertinent authorities
that subsequently come to the attention of a party or an amicus curiae,
who is denoted a "nonparty" under sub. (7), or a guardian ad litem under
sub. (8m). This procedure is based upon Federal Rule of Appellate Procedure
28 (j) and Circuit Rule 28 (e) of the Seventh Circuit Court
of Appeals.
SECTION
28. 809.24 of the statutes is repealed and recreated to read:
809.24 Rule (Reconsideration). (1) Except as
provided in sub. (4), a party may file a motion for reconsideration in
the court of appeals within 20 days after the date of a decision or order.
The motion must state with particularity the points of law or fact alleged
to be erroneously decided in the decision or order and must include supporting
argument. No separate memorandum in support of the motion is permitted
unless subsequently ordered by the court. No response to the motion is
permitted unless ordered by the court. An amended decision or order will
not be issued unless a response is ordered by the court. The motion and
any response shall not exceed 5 pages if a monospaced font is used or
1,100 words if a proportional serif font is used.
(2) In response to a motion for reconsideration,
the court shall issue an amended decision or order, or the court shall
issue an order denying the motion.
(3) Nothing in this section prohibits
the court from reconsidering a decision or order on its own motion at
any time prior to remittitur if no petition for review is filed under
s. 809.62 or, if a petition for review is filed, within 30 days after
filing the petition for review.
(4) No motion for reconsideration
of a court of appeals' decision or order issued under s. 809.105 is permitted.
Judicial Council Note, 2001: Section 809.24 is amended
to conform with the court of appeals' internal operating procedures, and
to provide an orderly procedure for reconsideration. Reconsideration is
intended for those rare cases in which the court of appeals overlooks
or misapprehends relevant and material facts or law, not for cases in
which a party simply disagrees with the court of appeals. Presentation
of new facts or alternate legal arguments is not appropriate on reconsideration.
Reconsideration is not permitted in s. 809.105 proceedings related to
parental consent prior to performance of abortion due to the abbreviated
appellate time periods provided in s. 809.105. Service requirements of
s. 801.14 (4) apply. The time for filing a motion for reconsideration
cannot be extended. See s. 809.82 (2) (e).
SECTION
29. 809.25 (1) (c) and (3) (a) of the statutes are
amended to read:
809.25 (1) (c) A party
seeking to recover costs in the court shall file a statement of the costs
within 14 days of the filing of the decision of the court. An opposing
party may file, within 7 11 days of the after
service of the statement, a motion objecting to the statement of costs.
(3) (a) If an appeal or cross-appeal
is found to be frivolous by the court, the court shall award to the successful
party costs, fees, and reasonable attorney fees under this section.
A motion for costs, fees, and attorney fees under this subsection
shall be filed no later than the filing of the respondent's brief or,
if a cross-appeal is filed, no later than the filing of the cross-respondent's
brief. This subsection does not apply to appeals or cross-appeals under
s. 809.107, 809.30, or 974.05.
Judicial Council Note, 2001: The 7-day time limit in
sub. (1) (c) was changed to 11 days. Please see the comment to s.
808.07 (6) concerning time limits.
SECTION
30. 809.26 (1) of the statutes is amended to read:
809.26 (1) The clerk of the
court of appeals shall transmit to the trial circuit
court the judgment and opinion decision or order of the
court and the record in the case filed pursuant to s. 809.15 within
31 days after the filing of the decision or order of the court.
If a petition for review is filed pursuant to s. 809.62, the transmittal
is stayed until the supreme court rules on the petition. If a motion
for reconsideration is filed under s. 809.24, the transmittal is stayed
until the court files an order denying the motion, or files an amended
decision or order, and the subsequent expiration of any period for filing
a petition for review.
SECTION 31. 809.30 (2) (a) (title), (d)
(title), (fm) (title), (j) (title) and (L) (title) of the
statutes are created to read:
809.30 (2) (a) (title) Appeal procedure; counsel to continue.
(d) (title) Indigency
redetermination.
(fm) (title) Transcript request
in chs. 48 and 938 proceedings.
(j) (title) Appeal from judgment
and order.
(L) (title) Appeals under s.
974.06.
SECTION
32. 809.30 (2) (b) (intro.), 1. and 6., (c),
(c) 1. and 2., (e), and (f) of the statutes are amended to read:
809.30 (2) (b) (intro.)
Notice of intent to pursue postconviction relief.
Within 20 days of after the date of sentencing, the defendant
shall file in the trial circuit court and serve on the district
attorney a notice of intent to pursue postconviction relief. The notice
shall include all of the following:
1. The case name and court caption
number.
6. Whether a defendant who does not request
the state public defender to appoint counsel will represent himself or
herself or will be represented by retained counsel. If the defendant has
retained counsel to pursue postconviction relief, counsel's
name and address shall be included.
(c) Clerk to send materials.
Within 5 days after a notice under par. (b) is filed, the clerk of
circuit court shall:
1. If the defendant requests representation
by the state public defender for purposes of postconviction relief, send
to the state public defender's appellate intake office a copy of the notice
that shows the date on which it was filed or entered, a copy of
the judgment or order specified in the notice that shows the date on
which it was filed or entered, a list of the court reporters for each
proceeding in the action in which the judgment or order was entered,
and a list of those proceedings in which a transcript has been filed in
the court record at the request of trial counsel with the clerk
of circuit court.
2. If the defendant does not request representation
by the state public defender, send or furnish to the defendant, if the
defendant is appearing without counsel, or to the defendant's attorney
if one has been retained, a copy of the judgment or order specified in
the notice that shows the date on which it was filed or entered,
a list of the court reporters for each proceeding in the action in which
the judgment or order was entered, and a list of those proceedings
in which a transcript has been filed in the court record at the request
of trial counsel with the clerk of circuit court.
(e) State public defender appointment
of counsel; transcript and circuit court case record request. Within
30 days after the filing of a notice under par. (b) requesting representation
by the state public defender for purposes of postconviction relief
state public defender appellate intake office receives the materials
from the clerk of circuit court under par. (c), the state public defender
shall appoint counsel for the defendant and order request
a transcript of the reporter's notes and a copy of the circuit court
case record, except that if the defendant's indigency must first be
determined or redetermined, the state public defender shall do
so, appoint counsel, and order request transcripts
and a copy of the circuit court case record within 50 days after
the notice under par. (b) is filed state public defender appellate
intake office receives the material from the clerk of circuit court under
par. (c).
(f) Defendant not represented by public
defender; transcript and circuit court case record request. A
defendant who does not request representation by the state public defender
for purposes of postconviction relief shall order request
a transcript of the reporter's notes, and may request a copy of the
circuit court case record, within 30 days after filing a notice under
par. (b). A defendant who is denied representation by the state public
defender for purposes of postconviction relief shall request a transcript
of the reporter's notes, and may request a copy of the circuit court case
record, within 90 days after filing a notice under par. (b).
SECTION
33. 809.30 (2) (g) of the statutes is renumbered 809.30
(2) (g) 2. and amended to read:
809.30 (2) (g) 2. The
court reporter shall file the transcript with the trial circuit
court and serve a copy of the transcript on the defendant within 60 days
of the ordering of request for the transcript. Within 20
days of the ordering of request for a transcript of postconviction
proceedings brought under sub. (2) (h), the court reporter shall
file the original with the trial circuit court and serve
a copy of that transcript on the defendant. The reporter may seek an extension
under s. 809.16 (4) 809.11 (7) for filing and
serving the transcript.
SECTION
34. 809.30 (2) (g) 1. of the statutes is created to
read:
809.30 (2) (g) (title)
Filing and service of transcript and circuit court case record.
1. The clerk of circuit court shall
serve a copy of the circuit court case record on the defendant within
60 days after receipt of the request for the circuit court case record.
SECTION
35. 809.30 (2) (h), (i), and (k) and 809.30 (3) of
the statutes are amended to read:
809.30 (2) (h) Notice
of appeal or postconviction motion. The defendant shall file in
circuit court and serve on the district attorney a notice of appeal
or motion seeking postconviction relief within 60 days of after
the later of the service of the transcript or circuit court case
record. A postconviction motion under this section may not be accompanied
by a notice of motion and is made when filed.
(i) Order determining postconviction
motion. The trial Unless an extension is requested by
the defendant or circuit court and granted by the court of appeals, the
circuit court shall determine by an order the defendant's motion for
postconviction relief within 60 days of its after the filing
of the motion or the motion is considered to be denied and the
clerk of the trial circuit court shall immediately enter
an order denying the motion.
(k) (title) Transmittal of record.
The Except as otherwise provided in s. 809.14 (3) and 809.15 (4) (b)
and (c), the clerk of the trial circuit court shall
transmit the record on appeal to the court of appeals as
soon as prepared but in no event more than 40 days after the filing of
the notice of appeal by the defendant. Subsequent proceedings in the appeal
are governed by the procedures for civil appeals.
(3) Appeals by state or other party; appointment
of counsel. In a felony case in which the state of Wisconsin,
the representative of the public, or any other party appeals and
the
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