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).
809.85
809.85
Rule (Counsel to continue). An attorney appointed by a lower court in a case or proceeding appealed to the court shall continue to act in the same capacity in the court until the court relieves the attorney.
809.85 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 151 Wis. 2d xxv (1989).
809.85 Note
Judicial Council Committee's Note, 1978: Rule 809.85 continues former Rule 251.88. [Re Order effective July 1, 1978]
809.85 Note
Judicial Council Note, 1990: See ss. 48.235 (7), 767.045 (5) and 880.331 (7).
809.85 Annotation
In this section, "the court" means the Court of Appeals. Once a timely notice of appeal is filed, the Court of Appeals gains jurisdiction over the case and the circuit court no longer has jurisdiction to remove court appointed counsel. Roberta Jo W. v. Leroy W.
218 Wis. 2d 225,
578 N.W.2d 185 (1998).
