809.10 Annotation The plaintiffs in this case were not "respondents" under sub. (4) because they were not named in the notice of appeal, and thus were not "respondents" adverse to the appellants. The appellants could not name the plaintiffs as respondents in the notice of appeal because the appellants were not aggrieved by any final order entered against the appellants and in favor of the plaintiffs. The appellants could not evade the bar to appealing non-final-orders as of right by the expedient of appealing final orders against those named in the notice of appeal in order to get review of non-final orders and rulings favorable to parties who were still active in the litigation. Dixon v. Hnilicka Company, Inc. 2011 WI App 46, 332 Wis. 2d 357, 798 N.W.2d 264, 09-1953.
809.10 Annotation Applying well-established principles of law that apply equally to the United States government when it is a party, a decision not to litigate any of the issues involved in the circuit court precludes the United States from pursuing relief in the court of appeals. Nickel v. United States of America, 2012 WI 22, 339 Wis. 2d 48, 810 N.W.2d 450, 11-0987.
809.10 Annotation Mechanics of making an appeal in the court of appeals. Felsenthal, WBB October 1981.
809.10 Annotation Appellate review: Choosing and shaping the proper standard. Leavell. WBB Apr. 1987.
809.10 Annotation Changing standards of review. Leavell. WBB May 1987.
809.103 809.103 Appeals in proceedings related to prisoners.
809.103(1)(1) In this section, "prisoner" has the meaning given in s. 801.02 (7) (a) 2.
809.103(2) (2) The appellate court shall notify the department of justice by a procedure developed by the director of state courts in cooperation with the department of justice when the appellate court rules that an appeal or supervisory writ proceeding brought by a prisoner meets any of the following conditions:
809.103(2)(a) (a) Is frivolous, as determined under s. 802.05 (2) or 895.044.
809.103(2)(b) (b) Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.
809.103(2)(c) (c) Seeks review of a denial of monetary damages from a defendant who is immune from such relief.
809.103(2)(d) (d) There is no ground upon which relief may be granted.
809.103(3) (3) A prisoner is not relieved from paying the full filing fee related to an appeal or supervisory writ proceeding if the appellate court dismisses the appeal or supervisory writ proceeding for one of the reasons listed in sub. (2).
809.103 History History: 1997 a. 133; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2011 a. 2.
809.105 809.105 Appeals in proceedings related to parental consent prior to performance of abortion.
809.105(1) (1) Applicability. This section applies to the appeal of an order under s. 48.375 (7) and supersedes all inconsistent provisions of this chapter.
809.105(2) (2)Initiating an appeal. Only a minor may initiate an appeal under this section. The minor shall initiate the appeal by filing, or by a member of the clergy filing on the minor's behalf, a notice of appeal with the clerk of the trial court in which the order appealed from was entered and shall specify in the notice of appeal the order appealed from. At the same time, the minor or member of the clergy shall notify the court of appeals of the filing of the appeal by sending a copy of the notice of appeal to the clerk of the court of appeals. The clerk of the trial court shall assist the minor or member of the clergy in sending a copy of the notice of appeal to the clerk of the court of appeals. The minor may use the name "Jane Doe" instead of her name on the notice of appeal and all other papers filed with the court of appeals.
809.105(3) (3)Perfecting the appeal.
809.105(3)(a)(a) Fee. No fee for filing an appeal in the court of appeals under this section may be required of a minor or of a member of the clergy who files an appeal under this section on behalf of the minor.
809.105(3)(b) (b) Forwarding to court of appeals. The clerk of the trial court shall forward to the court of appeals within 3 calendar days after the filing of the notice of appeal a copy of the notice of appeal and a copy of the trial court case record maintained as provided in s. 59.40 (2) (b), using the name "Jane Doe" instead of the minor's name, and the record on appeal, assembled as provided in sub. (4).
809.105(3)(c) (c) Filing in court of appeals. The clerk of the court of appeals shall file the appeal immediately upon receipt of the items specified in par. (b).
809.105(3)(d) (d) Statement on transcript. A minor or member of the clergy may not be required to file a statement on transcript in an appeal under this section.
809.105(4) (4)Record on appeal. The record in an appeal under this section consists of the following:
809.105(4)(a) (a) The petition.
809.105(4)(b) (b) Proof of service of the notice of hearing.
809.105(4)(c) (c) The findings of fact, conclusions of law and final order of the trial court.
809.105(4)(d) (d) Any other order made that is relevant to the appeal and the papers upon which that other order is based.
809.105(4)(e) (e) Exhibits material to the appeal, whether or not received in evidence.
809.105(4)(f) (f) Any other paper or exhibit filed in the trial court that the minor requests to have included in the record.
809.105(4)(g) (g) The notice of appeal.
809.105(4)(h) (h) A transcript of the reporter's notes.
809.105(4)(i) (i) The certificate of the clerk.
809.105(4)(j) (j) If the trial court appointed a guardian ad litem under s. 48.235 (1) (d), a letter written to the court of appeals by the guardian ad litem indicating his or her position on whether or not the minor is mature and well-informed enough to make the abortion decision on her own and whether or not the performance or inducement of an abortion is in the minor's best interests.
809.105(5) (5)Transcript of reporter's notes. At the time that a minor or member of the clergy files a notice of appeal, the minor or member of the clergy shall make arrangements with the reporter for the preparation of a transcript of the reporter's notes of the proceedings under s. 48.375 (7). The reporter shall file the transcript with the trial court within 2 calendar days after the notice of appeal is filed. The county of the court that held the proceeding under s. 48.375 (7) shall pay the expense of transcript preparation under this subsection.
809.105(6) (6)Voluntary dismissal. A minor may dismiss an appeal under this section by filing a notice of dismissal in the court of appeals.
809.105(7) (7)Briefs. Briefs are not required to be filed in appeals under this section.
809.105(8) (8)Assignment and advancement of cases. The court of appeals shall take cases appealed under this section in an order that ensures that a judgment is made within 4 calendar days after the appeal has been filed in the court of appeals. The time limit under this subsection may be extended with the consent of the minor and her counsel, if any, or the member of the clergy who initiated the appeal under this section, if any.
809.105(8m) (8m)Oral argument. If the court of appeals determines that a case appealed under this section is to be submitted with oral argument, the oral argument shall be held in chambers or, on motion of the minor through her counsel or through the member of the clergy who filed the appeal under this section, if any, or on the court of appeals' own motion, by telephone, unless the minor through her counsel or the member of the clergy demands that the oral argument be held in open court.
809.105(9) (9)Costs. The court of appeals may not assess costs against a minor or member of the clergy in an appeal under this section.
809.105(10) (10)Remittitur.
809.105(10)(a)(a) A judgment by the court of appeals under this section is effective immediately, without transmittal to the trial court, as an order either granting or denying the petition. If the court of appeals reverses a trial court order denying a petition under s. 48.375 (7), the court of appeals shall immediately so notify the minor by personal service on her counsel or the member of the clergy who initiated the appeal under this section, if any, of a certified copy of the order of the court of appeals granting the minor's petition. If the court of appeals affirms the trial court order, it shall immediately so notify the minor by personal service on her counsel or the member of the clergy who initiated the appeal under this section, if any, of a copy of the order of the court of appeals denying the petition and shall also notify the minor by her counsel or the member of the clergy who initiated the appeal under this section on behalf of the minor, if any, that she may, under sub. (11), file a petition for review with the supreme court under s. 809.62. The court of appeals shall pay the expenses of service of notice under this subsection. The clerk of the court of appeals shall transmit to the trial court the judgment and opinion of the court of appeals and the record in the case filed under sub. (4), within 31 days after the date that the judgment and opinion of the court of appeals are filed. If a petition for review is filed under sub. (11), the transmittal shall be made within 31 days after the date that the supreme court rules on the petition for review.
809.105(10)(b) (b) Counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall immediately, upon notification under par. (a) that the court of appeals has granted or denied the petition, notify the minor. If the court of appeals has granted the petition, counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order of the court of appeals to the person who intends to perform or induce the abortion. If with reasonable diligence the person who intends to perform or induce the abortion cannot be located for delivery, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall leave a certified copy of the order with the person's agent at the person's principal place of business. If a clinic or medical facility is specified in the petition as the corporation, partnership or other unincorporated association that employs the person who intends to perform or induce the abortion, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order to an agent of the corporation, partnership or other unincorporated association at its principal place of business. There may be no service by mail or publication. The person or agent who receives the certified copy of the order under this paragraph shall place the copy in the minor's medical record.
809.105(11) (11)Petition for review in supreme court.
809.105(11)(a)(a) Only a minor or the member of the clergy who initiated the appeal under this section, if any, may initiate a review of an appeal under this section. The petition for review of an appeal in the supreme court shall contain:
809.105(11)(a)1. 1. A statement of the issues presented for review and how the issues were decided by the trial court and court of appeals.
809.105(11)(a)2. 2. A brief statement explaining the reason for appeal to the supreme court.
809.105(11)(a)3. 3. The judgment and opinion of the court of appeals, and the findings of fact, conclusions of law and final order of the trial court that were furnished to the court of appeals. The court of appeals shall provide a copy of these papers to the minor, if any, the member of the clergy who initiated the appeal under this section, if any, her counsel or her guardian ad litem, if any, immediately upon request.
809.105(11)(a)4. 4. A copy of any other document submitted to the court of appeals under sub. (4).
809.105(11)(b) (b) The supreme court shall decide whether or not to grant the petition for review and shall decide the issue on review within the time specified in par. (c).
809.105(11)(c) (c) The supreme court shall, by court rule, provide for expedited appellate review of cases appealed under this subsection because time may be of the essence regarding the performance of the abortion.
809.105(11)(cm) (cm) If the supreme court determines that a case reviewed under this subsection is to be submitted with oral argument, the oral argument shall be held in chambers or, on motion of the minor through her counsel or through the member of the clergy who initiated the appeal under this section, if any, or on the supreme court's own motion, by telephone, unless the minor through her counsel or the member of the clergy demands that the oral argument be held in open court.
809.105(11)(d) (d) A judgment or decision by the supreme court under this section is effective immediately, without transmittal to the trial court, as an order either granting or denying the petition. If the supreme court reverses a court of appeals order affirming a trial court order denying a petition under s. 48.375 (7), the supreme court shall immediately so notify the minor by personal service on her counsel, if any, or on the member of the clergy who initiated the appeal under this section, if any, of a certified copy of the order of the supreme court granting the minor's petition. If the supreme court affirms the order of the court of appeals, it shall immediately so notify the minor by her counsel or by the member of the clergy who initiated the appeal under this section, if any. The clerk of the supreme court shall transmit to the trial court the judgment, or decision, and opinion of the supreme court and the complete record in the case within 31 days after the date that the judgment, or decision, and opinion of the supreme court are filed. The supreme court shall pay the expense of service of notice under this subsection.
809.105(11)(e) (e) Counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall immediately, upon notification under par. (d) that the supreme court has granted or denied the petition, notify the minor. If the supreme court has granted the petition, counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order of the supreme court to the person who intends to perform or induce the abortion. If with reasonable diligence the person who intends to perform or induce the abortion cannot be located for delivery, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall leave a certified copy of the order with the person's agent at the person's principal place of business. If a clinic or medical facility is specified in the petition as the corporation, partnership or other unincorporated association that employs the person who intends to perform or induce the abortion, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order to an agent of the corporation, partnership or other unincorporated association at its principal place of business. There may be no service by mail or publication. The person or agent who receives the certified copy of the order under this paragraph shall place the order in the minor's medical record.
809.105(12) (12)Confidentiality and anonymity. All proceedings in the court of appeals and the supreme court that are brought under this section shall be conducted in a confidential manner, and the minor may use the name "Jane Doe" instead of her name on all papers filed with either court. The identity of the minor involved and all records and other papers pertaining to an appeal shall be kept confidential, except as provided in s. 48.375 (7) (e).
809.105(13) (13)Certain persons barred from proceedings. No parent, or guardian or legal custodian, if one has been appointed, or foster parent, if the minor has been placed in a foster home, and the minor's parent has signed a waiver granting the department of children and families, a county department under s. 46.215, 46.22, or 46.23, or the foster parent the authority to consent to medical services or treatment on behalf of the minor, or adult family member, as defined in s. 48.375 (2) (b), of any minor who has initiated an appeal under this section may attend or intervene in any proceeding under this section.
809.107 809.107 Appeals in proceedings related to termination of parental rights.
809.107(1)(1) Applicability. This section applies to the appeal of an order or judgment under s. 48.43 and supersedes all inconsistent provisions of this chapter.
809.107(1m) (1m)Definition. In this section, "appellant" means a person who files a notice of intent to pursue postdisposition or appellate relief.
809.107(2) (2)Appeal or postdisposition motion.
809.107(2)(am)(am) Appeal procedure; counsel to continue. A person seeking postdisposition or appellate relief shall comply with this section. If the person desires to pursue postdisposition or appellate relief, counsel representing the person during circuit court proceedings under s. 48.427 shall continue representation by filing a notice under par. (bm), unless sooner discharged by the person or by the circuit court.
809.107(2)(bm) (bm) Notice of intent to pursue postdisposition or appellate relief. A person shall initiate an appeal under this section by filing, within 30 days after the date of entry of the judgment or order appealed from, as specified in s. 808.04 (7m), a notice of intent to pursue postdisposition or appellate relief with the clerk of the circuit court in which the judgment or order appealed from was entered. Also within that time period, the appellant shall serve a copy of the notice of intent on the person representing the interests of the public, opposing counsel, the guardian ad litem appointed under s. 48.235 (1) (c) for the child who is the subject of the proceeding, the child's parent and any guardian and any custodian appointed under s. 48.427 (3) or 48.428 (2). If the record discloses that final adjudication occurred after the notice of intent was filed, the notice shall be treated as filed after entry of the judgment or order appealed from on the day of the entry of the final judgment or order. The notice of intent shall include all of the following:
809.107(2)(bm)1. 1. The circuit court case name, number, and caption.
809.107(2)(bm)2. 2. An identification of the judgment or order from which the appellant intends to seek postdisposition or appellate relief and the date on which the judgment or order was entered.
809.107(2)(bm)3. 3. The name and address of the appellant and the appellant's trial counsel.
809.107(2)(bm)4. 4. For an appellant other than the state, whether the trial counsel for the appellant was appointed by the state public defender and, if so, whether the appellant's financial circumstances have materially improved since the date on which the appellant's indigency was determined.
809.107(2)(bm)4m. 4m. Whether the appellant requests representation by the state public defender for purposes of postdisposition or appellate relief.
809.107(2)(bm)5. 5. For an appellant other than the state, who does not request representation by the state public defender, whether the appellant will represent himself or herself or will be represented by retained counsel. If the appellant has retained counsel to pursue postdisposition or appellate relief, counsel's name and address shall be included.
809.107(2)(c) (c) Early notice of intent to pursue postdisposition or appellate relief. If the record discloses that the judgment or order appealed from was entered after the notice of intent to pursue postdisposition or appellate relief was filed, the notice of intent shall be treated as filed after that entry and on the date of the entry.
809.107(3) (3)Clerk to send materials. Within 5 days after a notice under sub. (2) (bm) is filed, the clerk of the circuit court shall do all of the following:
809.107(3)(a) (a) If the appellant requests representation by the state public defender for purposes of postdisposition or appellate relief, the clerk shall send to the state public defender's appellate intake office a copy of the notice of intent that shows the date on which the notice was filed, a copy of the judgment or order specified in the notice that shows the date on which the judgment or order was 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 for which a transcript already has been filed with the clerk of circuit court.
809.107(3)(b) (b) If the appellant does not request representation by the state public defender, the clerk shall send or furnish to the appellant, if the appellant is appearing without counsel, or to the appellant's attorney, if one has been retained, a copy of the judgment or order specified in the notice that shows the date on which the judgment or order was 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 already has been filed with the clerk of circuit court.
809.107(4) (4)Request for transcript and circuit court case record.
809.107(4)(a)(a) State public defender appointment of counsel. Within 15 days after the state public defender appellate intake office receives the materials from the clerk of circuit court under sub. (3) (a), the state public defender shall appoint counsel for the appellant and request a transcript of the reporter's notes and a copy of the circuit court case record.
809.107(4)(b) (b) Person not represented by public defender. An appellant who does not request representation by the state public defender for purposes of postdisposition or appellate relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record within 15 days after filing the notice of intent under sub. (2) (bm). An appellant who is denied representation by the state public defender for purposes of postdisposition or appellate relief shall 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 of intent under sub. (2) (bm).
809.107(4m) (4m)Filing and service of transcript and circuit court case record. The court reporter shall file the transcript with the circuit court and serve a copy of the transcript on the appellant within 30 days after the transcript is requested. The clerk of circuit court shall serve a copy of the circuit court case record on the appellant within 30 days after the case record is requested, and shall indicate in the case record the date and manner of service.
809.107(5) (5)Notice of appeal.
809.107(5)(a)(a) Filing; and service of notice of appeal. Within 30 days after the later of the service of the transcript or the circuit court case record, unless extended under s. 809.82, the appellant shall file a notice of appeal as provided in s. 809.10 and serve a copy of the notice on the persons required to be served under sub. (2) (bm).
809.107(5)(am) (am) Notice of abandonment of appeal. If the person who filed a notice of intent to appeal under sub. (2) and requested a transcript and case record under sub. (4) decides not to file a notice of appeal, that person shall notify the person required to be served under sub. (2) of this decision, within 30 days after the service of the transcript and case record under sub. (4).
809.107(5)(b) (b) Transmittal of record by clerk. 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.
809.107(5)(c) (c) Requesting transcripts for other parties. 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.
809.107(5)(d) (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.
809.107(5)(e) (e) Service of transcript on other parties. 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).
809.107(5m) (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.
809.107(6) (6)Subsequent proceedings in court of appeals; petition for review in supreme court. Subsequent proceedings in the appeal are governed by the procedures for civil appeals and the procedures under subch. VI, except as follows:
809.107(6)(a) (a) Appellant's brief-in-chief. The appellant shall file a brief within 15 days after the filing of the record on appeal.
809.107(6)(am) (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.
809.107(6)(b) (b) Respondent's brief. The respondent shall file a brief within 10 days after the service of the appellant's brief.
809.107(6)(c) (c) Appellant's reply brief. The appellant shall file within 10 days after the service of the respondent's brief a reply brief or statement that a reply brief will not be filed.
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Sept. 3, 2014. Published and certified under s. 35.18. Changes effective after Sept. 3, 2014 are designated by NOTES. (Published 9-3-14)