809.62 Annotation
Sub. (2) (c) requires that the petition contain a concise statement of the criteria of sub. (1) relied upon to support the petition, or in the absence of any of the criteria, a concise statement of other substantial and compelling reasons for review. Supreme court review is a matter of discretion. The supreme court has promulgated the criteria as guidelines for the exercise of its discretion. In the absence of one of the criteria, the supreme court may grant a petition for review if the petitioner establishes other substantial and compelling reasons for review. The amendment requires that the petitioner either state criteria relied upon or in the absence of any of the criteria, state other substantial and compelling reasons for review. The burden is on the petitioner to explicitly define the other substantial and compelling reasons for review.
809.62 Annotation
Sub. (2) (d) requires that the petition contain a statement of the case containing a description of the nature of the case, the procedural status of the case leading up to the review, the dispositions in the trial court and court of appeals, and a statement of those facts not included in the opinion of the court of appeals relevant to the issues presented for review, with appropriate references to the record. The opinion of the court of appeals must be included in an appendix to the petition. Consequently, if the opinion of the court of appeals sets forth a complete statement of the facts relevant to the issues presented for review, the petition for review need not restate those facts. The petition need only state those facts not included in the opinion of the court of appeals relevant to the issues presented for review. The statement of facts must include appropriate references to the record.
809.62 Annotation
Sub. (2) (e) provides that the petition must contain an argument amplifying the reasons relied on to support the petition, arranged in the order of the statement of issues presented. All contentions must be contained within the petition. There is no memorandum in support of the petition.
809.62 Annotation
The appendix required by sub. (2) (f) will assure that all relevant supporting documents necessary for an understanding of the petition for review be before the supreme court for consideration. This will facilitate not only the review of the petition for review but will enhance the petition as an aid to the court in any subsequent review on the merits.
809.62 Annotation
Sub. (4) is created to regulate the form and length of the petition for review and response. The form of the petition and response is based on Rule 809.19 for briefs as to printing requirements, page size and binding. The petition and response shall be as short as possible but shall not exceed 35 pages in length, exclusive of appendix.
809.62 Annotation
Prior sub. (3) is renumbered sub. (5) and amended to allow the court of appeals to reconsider on its own motion a decision or opinion within 30 days of a filing of a petition for review.
809.62 Annotation
The amendments to the rule refer to Rule 809.32 (4) which governs the filing of a petition for review in a criminal case where there has been a fully briefed appeal to the court of appeals and appointed counsel is of the opinion that a petition for review in the supreme court under Rule 809.62 would be frivolous and without any arguable merit.
809.62 Annotation
Prior subs. (2) and (5), relating to the time for filing the response to the petition for review and the provisions for cross-review have been renumbered subs. (3) and (7), respectively, but have not been substantively altered. [Re Order effective Jan. 1, 1982]
809.62 Annotation
The Supreme Court has power to entertain petitions filed by the state in criminal cases. State v. Barrett,
89 Wis. 2d 367,
280 N.W.2d 114 (1979).
809.62 Annotation
Where the Court of Appeals reversed a defendant's conviction on grounds of insufficiency of evidence, the double jeopardy clause did not bar the Supreme Court from reviewing the case. State v. Bowden,
93 Wis. 2d 574,
288 N.W.2d 139 (1980).
809.62 Annotation
"Decision" under sub. (1) means the result, disposition, or mandate reached by court, not the opinion. Neely v. State,
89 Wis. 2d 755,
279 N.W.2d 255 (1979).
809.62 Annotation
The Supreme Court will not order a new trial when the majority concludes that there is prejudicial error but there is no majority with respect to a particular error. "Minority vote pooling" is rejected. State v. Gustafson,
121 Wis. 2d 459,
359 N.W.2d 920 (1985).
809.62 Annotation
Petitions for review must be filed by 5:00 p.m. on the 30th day following the filing of the Court of Appeals decision. St. John's Home v. Continental Cas. Co.
150 Wis. 2d 37,
441 N.W.2d 219 (1989), per curiam.
809.62 Annotation
Citation to an unpublished court of appeals decision to show conflict between districts for purposes of s. 809.62 (1) (d) is appropriate. State v. Higginbotham,
162 Wis. 2d 978,
471 N.W.2d 24 (1991).
809.62 Annotation
Issues before the court are issues presented in the petition for review and not the discrete arguments that may be made, pro or con, in the disposition of the issue. State v. Weber,
164 Wis. 2d 788,
476 N.W.2d 867 (1991).
809.62 Annotation
Read together, s. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review, provided counsel does not determine the appeal to be without merit. Where counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy,
201 Wis. 2d 246,
548 N.W.2d 45 (1996).
809.62 Annotation
Discretionary review by the Wisconsin supreme court. Wilson and Pokrass. WBB Feb. 1983.
809.62 Annotation
Petitions for review by the Wisconsin supreme court. 1979 WLR 1176.
809.63
809.63
Rule (Procedure in supreme court). When the supreme court takes jurisdiction of an appeal or other proceeding, the rules governing procedures in the court of appeals are applicable to proceedings in the supreme court unless otherwise ordered by the supreme court in a particular case.
809.63 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
809.64
809.64
Rule (Reconsideration). A party may seek reconsideration of the judgment or opinion of the supreme court by filing a motion under
s. 809.14 for reconsideration within 20 days of the filing of the decision of the supreme court.
809.64 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252.
809.64 Note
Judicial Council Committee's Note, 1978: Rule 809.64 replaces former Rules 251.65, 251.67 to 251.69, which provided for motions for rehearing. The necessity for the filing of briefs on a motion for reconsideration as required by former Rule 251.67 is eliminated. The matter will be considered on the motion and supporting and opposing memoranda as with any other motion. The term "reconsideration" is used rather than rehearing because in a case decided without oral argument there has been no initial hearing. [Re Order effective July 1, 1978]
809.64 Annotation
A Supreme Court order denying a petition to review a Court of Appeals decision was neither a judgment nor an opinion. Archdiocese of Milwaukee v. Milwaukee,
91 Wis. 2d 625,
284 N.W.2d 29 (1979).
809.64 Annotation
A motion mailed within the 20-day period but received after the period expired was not timely and did not merit exemption from the time requirement. Lobermeier v. General Tel. Co. of Wisconsin,
120 Wis. 2d 419,
355 N.W.2d 531 (1984).
ORIGINAL JURISDICTION PROCEDURE
IN SUPREME COURT
809.70
809.70
Rule (Original action). 809.70(1)
(1) A person may request the supreme court to take jurisdiction of an original action by filing a petition which may be supported by a memorandum. The petition must contain all of the following:
809.70(1)(a)
(a) A statement of the issues presented by the controversy.
809.70(1)(b)
(b) A statement of the facts necessary to an understanding of the issues.
809.70(1)(d)
(d) A statement of the reasons why the court should take jurisdiction.
809.70(2)
(2) The court may deny the petition or may order the respondent to respond and may order oral argument on the question of taking original jurisdiction. The respondent shall file a response, which may be supported by a memorandum, within 10 days of the service of the order.
809.70(3)
(3) The court, upon a consideration of the petition, response, supporting memoranda and argument, may grant or deny the petition. The court, if it grants the petition, may establish a schedule for pleading, briefing and submission with or without oral argument.
809.70 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1995 a. 225.
809.71
809.71
Rule (Supervisory writ). A person may request the supreme court to exercise its supervisory jurisdiction over a court and the judge presiding therein or other person or body by filing a petition in accordance with
s. 809.51. A person seeking a supervisory writ from the supreme court shall first file a petition for a supervisory writ in the court of appeals under
s. 809.51 unless it is impractical to seek the writ in the court of appeals. A petition in the supreme court shall show why it was impractical to seek the writ in the court of appeals or, if a petition had been filed in the court of appeals, the disposition made and reasons given by the court of appeals.
809.71 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981);
1981 c. 390 s.
252.
809.71 Note
Judicial Council Committee's Note, 1981: The supreme court will not exercise its supervisory jurisdiction where there is an adequate alternative remedy. Unless the court of appeals is itself the object of the supervisory writ, usually there is an adequate alternative remedy of applying to the court of appeals under Rule 809.51 for the supervisory writ. The amendment to Rule 809.71 establishes that before a person may request the supreme court to exercise its supervisory jurisdiction, the person must first seek the supervisory writ in the court of appeals, unless to do so is impractical. Following the decision of the court of appeals, the amendment does not preclude the supreme court from considering a petition for review under Rule 809.62 or a petition for supervisory writ under Rule 809.71, depending upon the circumstances and the petitioner's ability to establish the respective governing criteria. [Re Order effective Jan. 1, 1982]
MISCELLANEOUS PROCEDURES IN COURT OF APPEALS AND SUPREME COURT
809.80
809.80
Rule (Filing and service of papers). 809.80(1)
(1) A person shall file any paper required to be filed by these rules with the clerk of the court, State Capitol, Madison, Wisconsin 53702, unless a different place of filing is expressly required or permitted by statute or rule.
809.80(2)(a)(a) A person shall serve and file a copy of any paper required or authorized under these rules to be filed in a trial or appellate court as provided in
s. 801.14 (1),
(2) and
(4).
809.80(2)(b)
(b) Any paper required or authorized to be served on the state in appeals and other proceedings in felony cases in the court of appeals or supreme court shall be served on the attorney general unless the district attorney has been authorized under
s. 978.05 (5) to represent the state. Any paper required or authorized to be served on the state in appeals and other proceedings in misdemeanor cases decided by a single court of appeals judge under
s. 752.31 (2) and
(3) shall be served on the district attorney. Every petition for review by the supreme court of a decision of the court of appeals in a misdemeanor case shall be served on the attorney general.
809.80 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252; Sup. Ct. Order, 130 Wis. 2d xi (1986);
1989 a. 31.
809.80 Note
Judicial Council Committee's Note, 1978: The prior requirement of an affidavit of service is eliminated. The provision of the Rules of Civil Procedure that the filing of a paper is a certification that the paper has been served is adopted. [Re Order effective July 1, 1978]
Effective date note
Judicial Council Note, 1986: Sub. (2) (b) does not change the existing service rules; it is intended to consolidate and clarify the procedure specified by ss. 59.47 (7), 165.25 (1) and 752.31 (2) and (3). [Re Order eff. 7-1-86]
809.80 Annotation
To avoid potential delay, address all types of mail to: Clerk of the Court, Supreme Court of Wisconsin, P. O. Box 1688, Madison, WI 53701. Gunderson v. State,
106 Wis. 2d 611,
318 N.W.2d 779 (1982).
809.81
809.81
Rule (Form of papers). A paper filed in the court must conform to the following requirements unless expressly provided otherwise in these rules:
809.81(2)
(2) Number of copies. An original and 4 copies in the court of appeals, an original and 8 copies in the supreme court. A party shall file an original and 2 copies of a motion filed under
s. 809.14 in the court of appeals when the appeal or other proceeding is one of the types of cases specified in
s. 752.31 (2).
809.81(3)
(3) Style. Produced using either a monospaced or a proportional serif font.
809.81(4)
(4) Spacing and margins. Double-spaced with a minimum of a 1.5 inch margin on each of the 4 sides.
809.81(5)
(5) Pagination. Paginated at the center of the bottom margin.
809.81(6)
(6) Copying process. Any duplicating or copying process that produces a clear, black image on white paper. Carbon copies may not be filed.
809.81(7)
(7) Binding. Bound or stapled at the top margin.
809.81 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order No.
93-18, 179 Wis. 2d xxi; Sup. Ct. Order No.
93-20, 179 Wis. 2d xxv.
809.81 Note
Judicial Council Committee's Note, 1978: The 8-1/2 x 11 letter size paper is adopted as the standard size for all papers to be filed in the Court of Appeals in place of using both 8-1/2 x 14 and 8-1/2 by 11. A standard size paper simplifies records management. There is a national trend away from legal size paper. [Re Order effective July 1, 1978]
809.81 Note
Judicial Council Committee's Note, 1981: Sub. (2) is amended to clarify that an original must be filed with the 4 copies in the court of appeals or with the 8 copies in the supreme court. [Re Order effective Jan. 1, 1982]
809.82
809.82
Rule (Computation and enlargement of time). 809.82(1)(1)
Computation. In computing any period of time prescribed by these rules, the provisions of
s. 801.15 (1) and
(5) apply.
809.82(2)
(2) Enlargement or reduction of time. 809.82(2)(a)(a) Except as provided in this subsection, the court upon its own motion or upon good cause shown by motion, may enlarge or reduce the time prescribed by these rules or court order for doing any act, or waive or permit an act to be done after the expiration of the prescribed time.
809.82(2)(b)
(b) Notwithstanding the provisions of
par. (a), the time for filing a notice of appeal or cross-appeal of a final judgment or order other than in an appeal under
s. 809.30 or
809.40 (1) may not be enlarged.
809.82(2)(c)
(c) The court may not enlarge the time prescribed for an appeal under
s. 809.105 without the consent of the minor and her counsel.
809.82 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981);
1981 c. 390 s.
252;
1991 a. 263.
809.82 Note
Judicial Council Committee's Note, 1978: Sub. (1). The provisions of the Rules of Civil Procedure as to computation of time are adopted for appeals to avoid any problems resulting from a lack of uniformity.
809.82 Annotation
Sub. (2) continues the first sentence of former Rule 251.45. It eliminates the second sentence of that Rule permitting the attorneys by stipulation to extend the time for filing briefs if the extension does not interfere with the assignment of the case because this procedure interferes with the ability of the court to monitor cases pending before it and because it is not always certain when a case will be on an assignment. The Supreme Court considers that deadlines as to briefs and other actions in the court should have priority over all matters except previously scheduled trials in circuit and county courts and deadlines set by a federal court. Requests for extensions are not, consequently, looked upon with favor by the court. [Re Order effective July 1, 1978]
809.82 Note
Judicial Council Committee's Note, 1981: Sub. (2) is amended to permit the court of appeals to extend the time for filing a notice of appeal or cross-appeal in appeals under Rules 809.30 and 809.40 (1), which cover criminal appeals and postconviction motions and appeals in ch. 48, 51 and 55 cases. When read with Rules 809.30 and 809.40 (1), the rule was previously ambiguous regarding extensions of time to file a notice of appeal or cross-appeal in ch. 48, 51 and 55 cases. The amendment clarifies the rules. Other than appeals under Rules 809.30 and 809.40 (1), the time for filing a notice of appeal or cross-appeal may not be extended. [Re Order effective Jan. 1, 1982]
809.82 Annotation
The Court of Appeals abused its discretion by ordering oral argument one day after the petition for a writ was filed and served. State ex rel. Breier v. Milwaukee County Cir. Ct.
91 Wis. 2d 833,
284 N.W.2d 102 (1979).
809.82 Annotation
The authority to extend the time for filing a notice of appeal under sub. (2) does not apply to appeals regarding terminations of parental rights under s. 809.107. Gloria A. v. State,
195 Wis. 2d 268,
536 N.W.2d 396 (Ct. App. 1995).
809.83
809.83
Rule (Penalties for delay or noncompliance with rules). 809.83(1)(a)(a) If the court finds that an appeal was taken for the purpose of delay, it may award any of the following:
809.83(1)(a)2.
2. A penalty in addition to interest not exceeding 10% on the amount of the judgment affirmed.
809.83(1)(b)
(b) A motion for costs, penalties, damages and fees under this subsection shall be filed no later than the filing of the respondent's brief or, if a cross-appeal is filed, the cross-respondent's brief.
809.83(2)
(2) Noncompliance with rules. Failure of a person to comply with a requirement of these rules, other than the timely filing of a notice of appeal or cross-appeal, does not affect the jurisdiction of the court over the appeal but is grounds for dismissal of the appeal, summary reversal, striking of a paper, imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.
809.83 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 151 Wis. 2d xvii (1989);
1995 a. 225.
809.83 Note
Judicial Council Committee's Note, 1978: Former ss. 251.22, 251.23, 251.51, 251.56, 251.57, 251.73, 251.75, 251.77, 251.81, 251.82, 251.85 and 251.89, providing for specific penalties for delay and for certain rule violations, are replaced. In the event of a rule violation, the court is authorized to take such action as it considers appropriate. If the court finds an appeal was taken for purposes of delay, it can impose one or more of the four types of penalties specified in sub. (1). [Re Order effective July 1, 1978]
809.83 Annotation
The untimely service of a petition filed under s. 808.10 does not affect jurisdiction, but the opposing party may move to dismiss under Rule 809.83 (2). State v. Rhone,
94 Wis. 2d 682,
288 N.W.2d 862 (1980).
809.83 Annotation
Summary reversal of a dismissal order as a sanction under sub. (2) entitled the plaintiffs to a trial without consideration of the issue that resulted in the dismissal. State ex rel. Blackdeer v. Town of Levis,
176 Wis. 2d 252, N.W.2d (Ct. App. 1993).
809.83 Annotation
To dismiss an appeal under sub. (2), there must be demonstrated egregious conduct or bad faith on the party's or attorney's part. In certain cases attorney bad faith may be imputed to the party, but the attorney conduct should involve the same litigation. It was improper to consider an attorney's repeated requests for time extensions in other cases in denying a motion and dismissing the appeal. State v. Smythe,
225 Wis. 2d 456,
592 N.W.2d 628 (1999).
809.84
809.84
Rule (Applicability of rules of civil procedure). An appeal to the court is governed by the rules of civil procedure as to all matters not covered by these rules unless the circumstances of the appeal or the context of the rule of civil procedure requires a contrary result.
809.84 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
