(b) Effect of noncompliance.
Failure to transmit the electronic copy of the brief, no-merit report, or supplemental no-merit report on or before the date that the paper document is filed may result in the document being considered untimely, in the absence of leave of the court.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390
; Sup. Ct. Order, 130 Wis. 2d xi (1986); 1989 a. 31
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01
, 2002 WI 120, 255 Wis. 2d xiii; 2005 a. 253
; Sup. Ct. Order No. 08-15
and Sup. Ct. Order No. 08-18
, 2009 WI 4, 311 Wis. 2d xxix; Sup. Ct. Order No. 13-10
, 2014 WI 45, filed 6-27-14, eff. 1-1-15; Sup. Ct. Order No. 14-03
, 2016 WI 29, filed 4-28-16, eff. 7-1-16; Sup. Ct. Order No. 14-03A
, filed 8-17-16, eff. 8-17-16.
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]
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 effective July 1, 1986]
Judicial Council Note, 2001: Subsection (1) was amended to provide the correct address of the clerk of the supreme court and court of appeals. [Re Order No. 00-02 effective July 1, 2001]
Judicial Council Note, 2002: Subsections (3) through (4) are new, and are taken largely from the Federal Rules of Appellate Procedure, Rule 25. Under the former rules, a brief was not filed until the clerk physically received it, regardless of when the brief may have been mailed. Because a party outside the Madison area had to allow time for postal or courier delivery, briefing periods were often adversely affected merely to ensure that a brief was actually received by the clerk before the expiration of the filing deadline.
Subsection (3) (a) retains the general rule that a document is not filed until it is received by the clerk. Filing may be accomplished in person, by mail, or by courier or common carrier. Electronic filing of papers, other than filing by facsimile, is not permitted unless otherwise ordered by the supreme court. See s. 801.16 (2) addressing rules governing facsimile filing. The supreme court and the court of appeals have adopted local rules governing facsimile filing.
However, sub. (3) (b) creates a mailbox rule for briefs and appendices
only. For briefs and appendices, filing will be considered timely if, on or before the deadline, the brief or appendix is correctly addressed and either: (a) deposited in the United States mail for delivery by first-class mail, or other class of mail at least as expeditious, postage pre-paid, or (b) delivered to a commercial delivery service for delivery within 3 calendar days. When a brief or appendix is mailed or sent by commercial courier, subsection (4) requires that the party also file a certification or affidavit of mailing stating the date and manner of mailing or delivery.
Subsection (3) (c) addresses pro se briefs and appendices filed by confined persons. For confined persons, a brief or appendix will be timely filed if, on or before the deadline, the brief or appendix is correctly addressed and delivered to the proper institution authorities for mailing. In order for the brief or appendix to be timely filed under sub. (3) (c), a certification or affidavit must be filed stating the date on which the brief or appendix was delivered to the proper institution authorities for mailing. The important point is that the pro se confined person must follow the institution rules or practices as to outgoing mail — whether they require placing mail in the hands of certain institution authorities, depositing mail in a designated receptacle, or some other procedure. See State ex rel. Nichols v. Litscher
, 2001 WI 119
¶ 32 n. 6, 247 Wis. 2d 1013
, 1028 n. 6, 635 N.W.2d 292
Subsection (3) (d) reiterates the long-standing rule that a petition for review filed with the clerk of the supreme court must actually be received by the clerk on or before the last day of the filing period. The time limit for filing a petition for review cannot be extended. The timely filing of a petition for review is necessary to invoke the supreme court's appellate jurisdiction. See First Wis. Nat'l Bank of Madison v. Nicholaou
, 87 Wis. 2d 360
, 274 N.W.2d 704
(1979). The mailbox rule for briefs and appendices created in sub. (3) (b) does not apply to the filing of a petition for review under s. 809.62.
Subsection (3) (e) expands the coverage of the rule tolling the time limit for the clerk's receipt of a pro se petition for review from a prisoner on the date the prisoner delivers a correctly addressed petition to the proper prison authorities, as established in State ex rel. Nichols v. Litscher, supra. to include petitions for review from all pro se confined persons. Subsection (3) (e) also adds a requirement for filing of a certification or affidavit setting forth the date on which the petition for review was delivered to the proper institution authorities for mailing. The important point is that in order to trigger tolling, the pro se confined person must follow the institution rules or practices as to outgoing mail — whether they require placing mail in the hands of certain institution authorities, depositing mail in a designated receptacle, or some other procedure. See State ex rel. Nichols v. Litscher, supra. [Re Order No. 02-01 effective January 1, 2003]
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
Sup. Ct. Order No. 14-03
states that “the Comments to the statutes and to the supreme court rules created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule."
Comment, 2016: Subd. (3) (a) is amended to maintain the time for filing by facsimile in the appellate courts as the regular business hours of the clerk of the supreme court and court of appeals.
Rule (Form of papers).
A paper filed in the court must conform to the following requirements unless expressly provided otherwise in these rules:
(2) Number of copies.
Five copies in the court of appeals, 9 copies in the supreme court, and 3 copies of a motion filed under s. 809.14
in the court of appeals if the appeal or other proceeding is one of the types of cases specified in s. 752.31 (2)
Produced using either a monospaced or a proportional serif font.
(4) Spacing and margins.
Double-spaced with a minimum of a 1.5 inch margin on each of the 4 sides.
Paginated at the center of the bottom margin.
(6) Copying process.
Any duplicating or copying process that produces a clear, black image on white paper. Carbon copies may not be filed.
Bound or stapled at the top margin.
Every notice of appeal or other document that is filed in the court and that is required by law to be confidential shall refer to individuals only by one or more initials or other appropriate pseudonym or designation.
Except as provided in s. 809.81 (8)
, the caption of any document 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. In the supreme court, “petitioner" shall be added to the designation of a party filing a petition for review. The designation of a party responding to a petition for review shall remain the same as in the court of appeals.
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; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01
, 2002 WI 120, 255 Wis. 2d xiii; Sup. Ct. Order No. 14-01
, 2015 WI 21, filed 3-2-15, eff. 7-1-15.
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]
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]
Judicial Council Note, 2001: Subsection (2) was amended to eliminate the distinction between “original" and “copy," because current technology produces copies of quality as good as the original. Subsection (8) requires that only the first name and last initial be used in all documents in confidential cases. [Re Order No. 00-02 effective July 1, 2001]
Judicial Council Note, 2002: Subsection (9) is created to clarify that the same caption should be used on all documents filed in an appellate case, and specifies that caption. Captions on pleadings and other documents filed pursuant to this rule are consistent with the current s. 809.19 (9) requirement governing captions on briefs. [Re Order No. 02-01 effective January 1, 2003]
Rule (Computation and enlargement of time). 809.82(1)(1)
In computing any period of time prescribed by these rules, the provisions of s. 801.15 (1)
(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.
Notwithstanding 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. 809.107
or an appeal under s. 809.30
, may not be enlarged.
The court may not enlarge the time prescribed for an appeal under s. 809.105
without the consent of the minor and her counsel.
A copy of any motion to enlarge time limits under this subsection shall be served on the clerk of circuit court.
Notwithstanding par. (a)
, the time for filing a motion for reconsideration under s. 809.24
may not be enlarged.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390
; 1991 a. 263
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01
, 2002 WI 120, 255 Wis. 2d xiii; 2005 a. 293
; 2017 a. 258
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.
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]
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]
Judicial Council Note, 2001: Subsection (2) (d) was created to provide notice to the clerk of any motion affecting time limits. Subsection (2) (e) was created to facilitate computation of due dates on petitions for review. [Re Order No. 00-02 effective July 1, 2001]
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
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), 95-0315
A claim of ineffective assistance of appellate counsel must be brought by a petition for writ of habeas corpus. Utilizing sub. (2) as a substitute for habeas corpus, so as to avoid making a substantive determination that a defendant was denied the effective assistance of appellate counsel constitutes an erroneous exercise of discretion. State v. Evans, 2004 WI 84
, 273 Wis. 2d 192
, 682 N.W.2d 784
. See also Santana v. Endicott, 2006 WI App 13
, 288 Wis. 2d 707
, 709 N.W.2d 515
It is unwise and unhelpful to replace the good cause standard for deciding extension motions under this section with an ineffective assistance of counsel analysis under Evans
when deciding requests for extensions of time to file notices of intent to pursue postconviction relief. State v. Quackenbush, 2005 WI App 2
, 278 Wis. 2d 611
, 692 N.W.2d 340
The writ of habeas corpus may be used in the court of appeals to seek relief from a termination of parental rights (TPR) even though there is no restraint of liberty of the petitioner, when appellate counsel failed to appeal before the deadline. Under sub. (2) (b), the time for filing an appeal of a TPR may not be enlarged when the petition was filed by someone other than a representative of the public. If the court was not able to recognize the petitioner's right to raise ineffectiveness of counsel, the petitioner will never have an appeal through no fault of his or her own. Amy W. v. David G., 2013 WI App 83
, 348 Wis. 2d 593
, 834 N.W.2d 432
Rule (Penalties for delay or noncompliance with rules). 809.83(1)(a)
If the court finds that an appeal was taken for the purpose of delay, it may award any of the following:
A penalty in addition to interest not exceeding 10 percent on the amount of the judgment affirmed.
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.
(2) Noncompliance with rules.
Failure of a person to comply with a court order or 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.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 151 Wis. 2d xvii (1989); 1995 a. 225
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii.
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]
Judicial Council Note, 2001: Subsection (2) is changed to allow appellate courts to sanction parties who violate court orders. [Re Order No. 00-02 effective July 1, 2001]
The untimely service of a petition filed under s. 808.10 does not affect jurisdiction, but the opposing party may move to dismiss under s. 809.83 (2). State v. Rhone, 94 Wis. 2d 682
, 288 N.W.2d 862
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).
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
The court of appeals may not grant summary reversal of a circuit court order on appeal as a sanction without a finding of bad faith, egregious conduct, or a litigant's abandonment of the appeal. Raz v. Brown, 2003 WI 29
, 260 Wis. 2d 614
, 660 N.W.2d 647
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.
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
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.
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 151 Wis. 2d xxv (1989).
Judicial Council Committee's Note, 1978: Rule 809.85 continues former Rule 251.88. [Re Order effective July 1, 1978]
Judicial Council Note, 1990: See ss. 48.235 (7), 767.045 (5) and 880.331 (7).
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
Rule (Identification of victims and others in briefing). 809.86(1)(1)
Declaration of policy.
By enacting this rule, the supreme court intends to better protect the privacy and dignity interests of crime victims. It requires appellate briefs to identify crime victims by use of identifiers, as specified in sub. (4)
, unless there is good cause for noncompliance. The rule protects the identity of victims in appellate briefs that the courts make available online.
This section applies to appeals in the following types of cases:
Certiorari review of decisions or orders entered by the department of corrections, the department of health services, or the parole commission in a proceeding or case specified in pars. (a)
Collateral challenges to judgments or orders entered in a proceeding or case specified in pars. (a)
In this section, “victim" means a natural person against whom a crime, other than a homicide, has been committed or alleged to have been committed in the appeal or proceeding. “Victim" does not include the person convicted of or alleged to have committed a crime at issue in the appeal or proceeding.
In an appeal specified under sub. (2)
, the briefs of the parties shall not, without good cause, identify a victim by any part of his or her name but may identify a victim by one or more initials or other appropriate pseudonym or designation.
(5) Protective order.
For good cause, the court may make any order necessary to protect the identity of a victim or other person, or to excuse compliance with this section.
Sup. Ct. Order No. 14-01
, 2015 WI 21, filed 3-2-15, eff. 7-1-15; 2017 a. 365
Sup. Ct. Order No. 14-01
states, “The Judicial Council Note to Wis. Stat. § (RULE) 809.86 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule."
Judicial Council Note, 2015: Proposed s. 809.86 addresses victim privacy concerns that result from public access to searchable documents posted on the Wisconsin Supreme Court and Court of Appeals access website. The proposed rule is intended to protect victims' constitutional and statutory rights to be treated with fairness, dignity, courtesy, sensitivity, and respect for their privacy. See Wis. Const. Article I, section 9m; Wis. Stat., s. 950.01. Specifically, the rule protects the identity of victims in appellate briefs that the courts make available online. The rule does not extend to other appellate filings, including appendices, because these documents are not currently posted electronically.
The proposed rule is not a rule of confidentiality or privilege. It is not intended to limit a defendant's right to a public trial, to limit the availability of any potential appellate argument or remedy, or to affect laws regarding public records or open court records that are available in the clerks of courts offices.
The rule is intended to address only matters in which the state has alleged or proved that a party in the appeal or proceeding has committed criminal conduct against one or more victims in the matter. Accordingly, sub. (2) is limited to matters in which victims of crime are most frequently referenced and identified as victims or alleged victims.
Subsection (3) provides a definition of a “victim" that includes an alleged victim. In some appeals, a party's position will be that there was in fact no victimization, and nothing in this proposed rule is intended to limit arguments to that effect.
The privacy issues addressed by the rule do not extend to a deceased victim in the same manner. Therefore, subsection (3) permits the victim of a homicide to be recognized in an appellate brief.