WISCONSIN COURT OF APPEALS INTERNAL OPERATING PROCEDURES
I. Chief Judge.
II. Presiding Judge.
IV. Central Legal Staff.
V. Law Clerks.
VI. Decisional Process.
VII. Expedited Appeals.
Note: These procedures were amended October 1, 2001, March 1, 2002, October 14, 2003, and November 30, 2009.
INTRODUCTION. The Court of Appeals uses these internal operating procedures for processing, considering, and disposing of matters pending before the court pursuant to applicable statutes and rules. In the interests of the orderly and efficient administration of justice, the court, in its discretion, may direct that a different or modified procedure be followed as to any particular matter pending before the court. These procedures may be periodically modified as experience and necessity dictate. The constitutional and statutory provisions with reference to the Court of Appeals mandate that it function as a single court under a Chief Judge and not as four separate courts.
I. CHIEF JUDGE. The Chief Judge is responsible for the administration of the court.
I-A. DEPUTY CHIEF JUDGE (SCR 70.37). The Chief Judge of the Court of Appeals shall appoint a Deputy Chief Judge to serve under the Chief Judge. The Deputy Chief Judge shall serve at the pleasure of the Chief Judge. The Deputy Chief Judge shall provide assistance to the Chief Judge in administrative areas requiring the participation by a judicial officer. The Chief Judge may delegate any of the Chief Judge's duties and authority as Chief Judge to the Deputy Chief Judge.
I-B. ADMINISTRATIVE ASSISTANT TO THE CHIEF JUDGE. The administrative assistant to the Chief Judge performs the duties assigned by the Chief Judge. Those duties consist, in part, of communicating and implementing orders and directives of the Chief Judge made in the discharge of his or her administrative duties and responsibilities.
The administrative assistant to the Chief Judge shall cooperate with the clerk, the chief deputy clerk, the chief staff attorney of the Court of Appeals, and the fiscal officer of the Supreme Court to efficiently dispose of the court's work.
II. PRESIDING JUDGE. Each Presiding Judge is responsible for the management of the case flow of appeals and proceedings originating in the district in which the Judge presides. The Presiding Judge supervises and control the preparation of all appeals and proceedings coming before his or her district.
The Presiding Judge is appointed by the Chief Judge for a two-year term, commencing August 1 of odd numbered years.
With the approval of the Chief Judge, the Presiding Judge may temporarily assign a law clerk and/or a judge's secretary to another judge if necessary to efficiently dispose of the district's workload.
The Presiding Judge exercises continuous leadership in management of the court's case assignment and processing system and initiates development of policy concerning the court's internal operations. The Presiding Judge schedules the screening, preargument, oral argument, decision, opinion and motions conferences, and assigns cases for disposition and opinion pursuant to Article VI. The Presiding Judge also directs the cases and other matters to be considered at the conferences and further directs the administrative assistant as to the assignment of cases for disposition.
The Presiding Judge supervises any staff attorney assigned to a district who is not a member of the central staff.
Whenever possible, Presiding Judges conduct the work of the panel in a manner that will make one judge available within the district during normal court hours.
III. CLERK. The clerk shall perform the duties of the office prescribed by law and shall perform such additional duties prescribed by the court or the Chief Judge and shall aid the Chief Judge in the performance of his or her administrative responsibilities.
The clerk is responsible for the constant monitoring and supervision over cases from the time of appeal or commencement of proceedings until ultimate disposition. The clerk dockets and monitors to assure the prompt, proper, and timely compliance with the appellate procedure. The clerk's office informs a staff attorney for each district of those cases which the appellants have identified as being entitled by statute or rule to be given preference by the court. Noncompliance with the appellate procedure is referred to a staff attorney for appropriate action.
The clerk has custody of the records and papers of the court and shall not permit any original record or paper to be taken from the custody of employees of the Court of Appeals, except as authorized by the orders or instructions of the Supreme Court, the Chief Justice, the Court of Appeals, its Chief Judge or a Presiding Judge.
The clerk files and dockets the decisions and opinions of the court. Upon filing, the clerk, through a district secretary, notifies parties as to the court's decision and releases the opinions to the parties.
The clerk dockets and issues all orders of the court. Other than routine or delinquency notices or orders, all orders contain the name or names of the deciding judge or judges but are not authored by a judge or judges.
The clerk gathers statistics with respect to the business of the court and supplies them to the Chief Judge, Presiding Judges, the chief staff attorney, and, as requested, the director of state courts, and to such other judges of the Court of Appeals who request them.
The clerk shall cooperate with the chief staff attorney and the administrative assistant to the Chief Judge to efficiently dispose of the court's work.
III-A. CHIEF DEPUTY CLERK. The chief deputy clerk performs such duties as are assigned by the clerk and, in the absence of the clerk, performs all of the duties of the clerk. The chief deputy clerk shall cooperate with the clerk, the chief staff attorney, and the administrative assistant to the Chief Judge to efficiently dispose of the court's work.
IV. CENTRAL LEGAL STAFF. Central staff attorneys serve the court as a whole; their responsibilities are institutional. Their primary function is to provide professional assistance as house counsel to the judges in efficiently, expeditiously, and effectively processing matters pending before the court to and through the decision-making stages. The central legal staff is headed by the chief staff attorney.
IV-A. CHIEF STAFF ATTORNEY. The chief staff attorney performs the duties assigned by the court and the Chief Judge. Under the supervision of the Chief Judge, (s)he supervises and directs the work of the central staff attorneys, assigns staff attorneys to the appeals and proceedings originating in a specified district, and equalizes the workloads of the staff attorneys.
The chief staff attorney is the legal advisor to the clerk of the court. He or she assists the clerk in establishing procedures for: docketing and monitoring appeals and proceedings; record storage, handling and transmittal; taxing costs; filing opinions and decisions; and gathering court statistics.
To the extent feasible, within one week after an appeal record is transmitted to the court, the chief staff attorney endeavors to determine whether the court has jurisdiction. If he or she believes that the court is without jurisdiction or if an examination of the record raises a doubt as to whether the court has jurisdiction, he or she will immediately contact the Presiding Judge or motions judge of the appropriate district. The court may issue an order advising the parties of the jurisdictional problem and request that the parties submit memoranda addressing the issue in a specific form and time period. If jurisdiction is clearly lacking, the court may immediately dismiss the appeal.
The chief staff attorney is not assigned to a particular district but shall, consistent with the time necessary to discharge his or her duties as chief staff attorney, assist with the staff workload of the various districts as deemed necessary by the chief staff attorney or as directed by the Chief Judge.
The chief staff attorney constantly monitors the work of the central staff attorneys to assure that it is expeditiously performed and that governing criteria are uniformly applied.
The chief staff attorney reviews the opinions not recommended for publication by the panels to determine whether they should be recommended for publication. The chief staff attorney prepares his or her recommendations and suggestions and submits them to the publication committee. In the interests of establishing a unified appellate system, doctrinal inconsistencies in panel decisions are immediately reported to the Chief Judge to the end that the Chief Judge may be informed.
The chief staff attorney shall cooperate with the clerk, the chief deputy clerk, and the administrative assistant to the Chief Judge to efficiently dispose of the court's work.
IV-B. CENTRAL STAFF ATTORNEYS. Central staff attorneys are the staff attorneys who work under the supervision of the chief staff attorney in the central office located in Madison. Each central staff attorney has the initial responsibility for staff work performed for the district to which he or she is assigned and performs such staff work for other districts as assigned by the chief staff attorney.
Central staff attorneys perform such additional work as assigned by the chief staff attorney. Central staff attorneys regularly prepare (for appeals and proceedings assigned to them) memoranda and recommendations with respect to: requests for extension of time; motions (procedural or substantive); requests that an appeal be heard by a three-judge panel; supervisory writs; petitions for leave to appeal; motions for relief pending appeal; and inmate petitions. Central staff attorneys also prepare drafts of orders, no merit and per curiam opinions.
Central staff attorneys shall advise the Chief Judge and the Presiding Judges of the existence of pending appeals or proceedings within one panel or the several panels that afford the prospect of doctrinal inconsistency when such cases come to their attention.
IV-C. DISTRICT STAFF ATTORNEYS. District staff attorneys are staff attorneys located in a district office rather than the Madison central office. They are supervised by the Presiding Judge of their district. District staff attorneys perform research and prepare drafts of per curiam opinions and orders for their respective panels. District staff attorneys also prepare memoranda and recommendations regarding motions and petitions in the event the matter can be handled more expeditiously in the district office. District staff attorneys also administer the expedited appeals program in their respective districts under the supervision of the Chief Judge and the Presiding Judge. In addition, they shall perform such other tasks as are assigned by the Presiding Judge.
V. LAW CLERKS. A law clerk serves as a personal professional assistant to a particular judge and performs such tasks as are assigned by that judge. A law clerk may be temporarily assigned to another judge by the Presiding Judge, with the approval of the Chief Judge, for a short duration or for a particular matter. A law clerk's work normally includes legal research, memorandum drafting, citation checking, editorial work, and opinion review.
VI. DECISIONAL PROCESS. (1) Screening
. Screening is the procedure whereby each case is examined briefly, prior to its being considered on the merits, by the deciding judges for the purpose of routing it through the appropriate decisional process. Following filing of briefs, the Presiding Judge schedules a screening conference for members of the panel. At conference, a case is routed for: (1) summary disposition; (2) submission on briefs, without oral argument; (3) oral argument; (4) consolidation or consideration on the same calendar; or (5) certification to the Supreme Court. One-judge appeals are identified and assigned by the Presiding Judge. Screening conferences may be conducted immediately prior to or in conjunction with the decision conference. Expedited appeals conferences are held within 7 day of receipt of the final briefs.
With respect to determining whether briefs are adequate or whether oral argument is to be called, the court applies the oral argument criteria, Wis. Stat. Rule s. 809.22, after analyzing the briefs and considering the parties' statements regarding oral argument, Wis. Stat. Rule s. 809.19 (1) (c). Whenever the workload of the panel permits, it favors oral argument. For oral argument cases, parties may be limited to specific areas or directed to discuss matters omitted or not adequately discussed in briefs. The court may limit the length of argument.
Cases identified for summary disposition by the court on its own motion, Wis. Stat. Rule s. 809.21 (1), are decided by the panel, upon review of the briefs and the record, following screening, and assigned to staff attorneys for preparation of an order implementing the court's decision. The order will identify the case, the deciding judges, the ultimate result or disposition, and the reasons for the result. A draft order is submitted to the panel for final decision. If the panel decides that the case should not be disposed of summarily, the case is routed for decision on briefs.
A case may be disposed of summarily by order if the panel unanimously agrees on the decision; unanimously agrees the issues involve no more than the application of well-settled rules of law or the issues are decided on the basis of unquestioned and controlling precedent or the issues relate to sufficiency of evidence or trial court discretion and the record clearly shows sufficient evidence or no abuse of discretion; and the issues may be resolved by merely stating the reasons for the decision without a detailed analysis. In addition, any appeal or other proceeding may be disposed of summarily if requested by the parties, if necessary for the sound and efficient administration of justice, or if otherwise required in the interests of justice.
Appeals or other proceedings decided by one Court of Appeals judge may be disposed of summarily under this procedure.
Joint or simultaneous calendaring and consolidating of cases where appropriate may be ordered by the Presiding Judges so as to lessen the potential for conflict. Cases that require the making of new law or that present major issues of public policy may be considered for certification.
If a judge determines that (s)he should be disqualified, the Presiding Judge advises the Chief Judge so that another judge or a reserve judge may be assigned.
(2) Assignment of Cases to Submission Calendars. The Presiding Judge organizes a submission calendar or calendars as promptly and frequently as the case flow permits. Except in unusual circumstances, cases will be calendared for submission or oral argument within 45 days of receipt of the last brief. The calendars are balanced as well as possible to achieve speedy submission of cases that do not require oral argument, and at the same time avoid undesirable delay in the orderly submission of cases requiring oral argument. At the direction of the Presiding Judge, a designated secretary assigns cases to the calendars for disposition. When possible, and without undue delay in civil cases, preference is given to expedited and criminal appeals and appeals required by statute to be given preference. Cases not given preference are placed upon the calendar in the order that they are ready for submission.
Oral argument cases may be withheld from calendaring as necessary for limited periods to efficiently calendar cases to be heard in locations required by Wis. Stat. ss. 752.15, 752.17 and 752.19.
For oral arguments, the notice provides the date, place and time; the length; and any special instructions relating to the oral argument.
(3) Motions and Petitions for Leave to Appeal. (a) The motions judge is the judge designated by the Presiding Judge to hear motions. In the event the motions judge is not available, any other judge may consider a motion. The Presiding Judge may designate himself or herself to act as the motions judge.
(b) Motions are filed with the clerk. Motions for procedural orders may be acted upon without response. Motions for procedural orders which usually do not adversely affect the opposing party, such as to file a brief in excess of the maximum number of pages, may be acted upon directly by the clerk, in consultation with the chief staff attorney. As necessary, the clerk or the chief staff attorney will consult the motions judge of the appropriate panel. The opposing party may be invited to file a response. A party adversely affected by the granting of a procedural motion without a response may move for reconsideration. Wis. Stat. Rule s. 809.14 (2).
(c) The motions judge may act on all motions, except those that reach the merits or preclude the merits from being reached, which can only be acted on by the panel. The motions judge may direct that any motion be acted on by the panel. The panel considers motions that reach the merits, that preclude the merits from being reached, or that have been referred by the motions judge. The panel considers these motions at regularly scheduled or specially called motions conferences. Motions conferences may be by telephone and may include the staff attorney. The panel may direct that a motion be heard at oral argument. As provided in IOP VI(12)(b), any motion in a one-judge appeal, including one which reaches the merits or which precludes the merits from being reached, shall be decided by the motions judge.
(d) Procedural motions for which responses have been invited, procedural motions adversely affecting the opposing party, motions for reconsideration of procedural orders, and all substantive motions, together with responses and supporting and opposing memoranda and papers, are reviewed by a staff attorney. The staff attorney discusses the motions with the motions judge. Staff attorneys prepare motions memoranda or oral presentations with recommendations and a proposed order for each motion to be submitted to the panel and for any other motion as directed by the motions judge. Staff attorneys will usually draft all orders following the court's decision.
(e) Petition for Leave to Appeal. Wis. Stat. s. 808.03 (2); Rule s. 809.50. Petitions for leave to appeal are filed with the clerk. Staff attorneys review all petitions, responses, and supporting memoranda and prepare motions memoranda analyzing the request. The papers and memoranda are circulated to the deciding judges for consideration at a motions conference. As provided in IOP VI(12)(b), a petition for leave to appeal in a one-judge appeal shall be decided by one court of appeals judge. Any requests for temporary relief must be included with the petition. Parties seeking temporary relief should petition a specific judge of the appropriate panel, pursuant to Wis. Stat. Rule s. 809.52, only when immediate (less than 24-hour) relief is required. For all other situations, staff attorneys advise the Presiding Judge of the request for temporary relief. The Presiding Judge, or his or her designee, may grant the relief upon the terms and conditions deemed appropriate. Staff attorneys draft the implementing order to be issued by the clerk. This procedure is intended to assure efficient court operations, efficient consideration of the petitions, and the least expensive procedure for the parties and their attorneys.
Motions for Relief Pending Appeal. Motions for relief pending appeal are decided by the motions judge, unless the relief requested reaches the merits, in which event the motion is decided by the panel. If relief is requested pending consideration of the motion, staff attorneys advise the Presiding Judge. The presiding Judge, or his or her designee, may grant the relief upon terms and conditions deemed appropriate. Staff attorneys draft the implementing order to be issued by the clerk. Parties seeking relief pending consideration of the motions should only approach a specific judge of the panel if immediate (less than 24-hour) relief is required.