809.19 Note
Comment, 2008: An electronic brief required under s. 809.19 (12) and an electronic appendix requested under s. 809.19 (13) are in addition to and not a replacement for the paper brief and appendix required under s. 809.19. The filing requirement is satisfied only when the requisite number of paper copies of the brief and appendix and the electronic brief are filed.
809.19 Annotation
The filing of an electronic appendix is encouraged, but not required. These rules do not provide for total electronic filing at the appellate level. Accordingly, the paper copies of appellate briefs and appendices constitute the official court record.
809.19 Annotation
An electronic brief shall be submitted to the court as a text-searchable Portable Document Format (PDF) document. "PDF" is a universal file format that preserves the fonts, formatting, pagination, and graphics of a source document. A text-searchable brief is created by electronically converting the original word processing file to a PDF document. An electronic appendix may be submitted as a non-text-searchable PDF document. A non-text-searchable appendix is created by scanning the paper document to create a PDF document.
809.19 Annotation
Electronic briefs may be enhanced with internal links (such as a table of contents with links to locations in the brief) or external links (links to websites containing the text of cases or statutes cited in the brief). External links in an electronic brief shall not require a password for access to the case or statute. No enhancement to an electronic brief shall alter the text of the brief.
809.19 Annotation
All electronic briefs shall be submitted in a single electronic file. The file containing the electronic brief shall not contain the appendix or any other document or material. An electronic appendix containing more than 200 pages may be split into smaller electronic files.
809.19 Annotation
Sample electronic brief certification form:
809.19 Annotation
CERTIFICATE OF COMPLIANCE WITH RULE 809.19 (12)
809.19 Annotation
I hereby certify that:
809.19 Annotation
I have submitted an electronic copy of this brief, excluding the appendix, if any, which complies with the requirements of s. 809.19 (12). I further certify that:
809.19 Annotation
This electronic brief is identical in content and format to the printed form of the brief filed as of this date.
809.19 Annotation
A copy of this certificate has been served with the paper copies of this brief filed with the court and served on all opposing parties.
809.19 Annotation
Signed ....
809.19 Annotation
Signature
809.19 Annotation
Sample electronic appendix certification form:
809.19 Annotation
CERTIFICATE OF COMPLIANCE WITH RULE 809.19 (13)
809.19 Annotation
I hereby certify that:
809.19 Annotation
I have submitted an electronic copy of this appendix, which complies with the requirements of s. 809.19 (13). I further certify that:
809.19 Annotation
This electronic appendix is identical in content to the printed form of the appendix filed as of this date.
809.19 Annotation
A copy of this certificate has been served with the paper copies of this appendix filed with the court and served on all opposing parties.
809.19 Annotation
Signed ....
809.19 Annotation
Signature
809.19 Annotation
[Re Order No. 08-15 and 08-18 effective July 1, 2009]
809.19 Annotation
Appellate counsel's appendix containing only a copy of the judgment of conviction, a notice of motion and motion to suppress, and a notice of intent to pursue postconviction relief did not meet the standard under sub. (2) (a) to contain "essential to an understanding of the issues raised." When counsel certified that the essential items were in the appendix when they were not, the certification was false and counsel was subject to sanction. State v. Bons, 2007 WI App 124,
301 Wis. 2d 227,
731 N.W.2d 367,
06-1625.
809.19 Annotation
The page length limits in sub. (8) apply in original jurisdiction actions. Watts v. Thompson,
116 F.3d 220 (1997).
809.20
809.20
Rule (Assignment and advancement of cases). The court may take cases under submission in such order and upon such notice as it determines. A party may file a motion to advance the submission of a case either before or after the briefs have been filed. The motion should recite the nature of the public or private interest involved, the issues in the case and how delay in submission will be prejudicial to the accomplishment of justice.
809.20 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
809.20 Note
Judicial Council Committee's Note, 1978: This rule incorporates the present unwritten procedure for having the submission of a case advanced. It also specifies the factors that may affect the advancement of a case. [Re Order effective July 1, 1978]
809.21
809.21
Rule (Summary disposition). 809.21(1)
(1) The court upon its own motion or upon the motion of a party may dispose of an appeal summarily.
809.21(2)
(2) A party may file at any time a motion for summary disposition of an appeal.
Section 809.14 governs the procedure on the motion.
809.21 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252.
809.21 Note
Judicial Council Committee's Note, 1978: The basic concept in former Rule 251.54 of allowing the Supreme Court to dispose of appeals summarily is continued, but Rule 809.21 specifically authorizes a motion for this purpose. Such a motion was often used under prior procedure, but the rules did not expressly authorize it. [Re Order effective July 1, 1978]
809.22
809.22
Rule (Oral argument). 809.22(1)
(1) The court shall determine whether a case is to be submitted with oral argument or on briefs only.
809.22(2)
(2) The court may direct that an appeal be submitted on briefs only if:
809.22(2)(a)1.
1. Are plainly contrary to relevant legal authority that appear to be sound and are not significantly challenged;
809.22(2)(a)2.
2. Are on their face without merit and for which no supporting authority is cited or discovered; or
809.22(2)(a)3.
3. Involve solely questions of fact and the fact findings are clearly supported by sufficient evidence; or
809.22(2)(b)
(b) The briefs fully present and meet the issues on appeal and fully develop the theories and legal authorities on each side so that oral argument would be of such marginal value that it does not justify the additional expenditure of court time or cost to the litigant.
809.22(3)
(3) The court shall determine the amount of time for oral argument allowed to each party in a case either by general or special order.
809.22(4)
(4) On motion of any party or its own motion, the court may order that oral argument be heard by telephone.
809.22 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 141 Wis. 2d xiii (1987).
809.22 Note
Judicial Council Committee's Note, 1978: The Supreme Court has for a number of years scheduled some cases for submission on briefs only without oral argument in an effort to accommodate its burgeoning caseload. The criteria by which the court decides whether a case is to have oral argument have never been formally adopted. This rule is a statement of those criteria. Counsel should address these criteria in their briefs in discussing the question of the need for oral argument. See Rule 809.19 (1) (c). Flexibility is provided by sub. (3) as to the length of oral argument in order to meet the needs of an individual case. It may be appropriate, for example, to have an oral argument for the sole purpose of allowing the court to ask questions of counsel. [Re Order effective July 1, 1978]
809.22 Note
Judicial Council Note, 1988: Sub. (4) [created] authorizes oral arguments to be heard by telephone conference on motion of any party or the court of appeals. [Re Order effective Jan. 1, 1988]
809.23
809.23
Rule (Publication of opinions). 809.23(1)(a)(a) While neither controlling nor fully measuring the court's discretion, criteria for publication in the official reports of an opinion of the court include whether the opinion:
809.23(1)(a)1.
1. Enunciates a new rule of law or modifies, clarifies or criticizes an existing rule;
809.23(1)(a)2.
2. Applies an established rule of law to a factual situation significantly different from that in published opinions;
809.23(1)(a)3.
3. Resolves or identifies a conflict between prior decisions;
809.23(1)(a)4.
4. Contributes to the legal literature by collecting case law or reciting legislative history; or
809.23(1)(a)5.
5. Decides a case of substantial and continuing public interest.
809.23(1)(b)1.
1. The issues involve no more than the application of well-settled rules of law to a recurring fact situation;
809.23(1)(b)2.
2. The issue asserted is whether the evidence is sufficient to support the judgment and the briefs show the evidence is sufficient;
809.23(1)(b)3.
3. The issues are decided on the basis of controlling precedent and no reason appears for questioning or qualifying the precedent;
809.23(1)(b)5.
5. It is a per curiam opinion on issues other than appellate jurisdiction or procedure;
809.23(2)
(2) Decision on publication. The judges of the court of appeals who join in an opinion in an appeal or other proceeding shall make a recommendation on whether the opinion should be published. A committee composed of the chief judge or a judge of the court of appeals designated by the chief judge and one judge from each district of the court of appeals selected by the court of appeals judges of each district shall determine whether an opinion is to be published.
809.23(3)
(3) Citation of unpublished opinions. 809.23(3)(a)(a) An unpublished opinion may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case, and except as provided in
par. (b).
809.23(3)(b)
(b) In addition to the purposes specified in
par. (a), an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under
s. 752.31 (2) may be cited for its persuasive value. A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it.
809.23(3)(c)
(c) A party citing an unpublished opinion shall file and serve a copy of the opinion with the brief or other paper in which the opinion is cited.
809.23(4)(a)(a) Except as provided in
par. (b), any person may at any time file a request that an opinion not recommended for publication or an unreported opinion be published in the official reports.
809.23(4)(b)
(b) No request may be made for the publication of an opinion that is a decision by one court of appeals judge under
s. 752.31 (2) and
(3) or that is a per curiam opinion on issues other than appellate jurisdiction or procedure.
809.23(4)(c)
(c) A person may request that a per curiam opinion that does not address issues of appellate jurisdiction or procedure be withdrawn, authored and recommended for publication. That request shall be filed within 20 days of the date of the opinion and shall be decided by the panel that decided the appeal.
809.23(4)(d)
(d) A copy of any request made under this subsection shall be served under
s. 809.80 on the parties to the appeal or other proceeding in which the opinion was filed. A party to the appeal or proceeding may file a response to the request within 5 days after the request is filed.
809.23 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii;
1981 c. 390 s.
252; Sup. Ct. Order, 109 Wis. 2d xiii (1982); Sup. Ct. Order, 118 Wis. 2d xiii (1984);
1991 a. 189, Sup. Ct. Order No.
96-10, 208 Wis. 2d xiii (1997), Sup. Ct. Order No.
01-04, 2001 WI 135, 248 Wis. 2d xvii; Sup. Ct. Order No.
08-02, 2009 WI 2, 311 Wis. 2d xxv.
809.23 Note
Judicial Council Committee's Note, 1978: As with Rule 809.22 on oral argument, a former practice of the Supreme Court is written into this Rule and formal criteria established for it. The trend toward nonpublication of opinions is nationwide and results from the explosion of appellate court opinions being written and published. Many studies of the problem have concluded that unless the number of opinions published each year is reduced legal research will become inordinately time-consuming and expensive. Some argue that even accepting the premise that a court may properly decide not to publish an opinion this should not prevent that opinion from being cited as precedent since in common law practice any decision of a court is by its nature precedent. Others argue that a court may try to hide what it is doing in a particular case by preventing the publication of the opinion in the case.
809.23 Annotation
There are several reasons why an unpublished opinion should not be cited: (1) The type of opinion written for the benefit of the parties is different from an opinion written for publication and often should not be published without substantial revision; (2) If unpublished opinions could be cited, services that publish only unpublished opinions would soon develop forcing the treatment of unpublished opinions in the same manner as published opinions thereby defeating the purpose of nonpublication; (3) Permitting the citation of unpublished opinions gives an advantage to a person who knows about the case over one who does not; (4) An unpublished opinion is not new authority but only a repeated application of a settled rule of law for which there is ample published authority.
809.23 Annotation
If it is desirable to reduce the number of published opinions, the only alternative to having some opinions unpublished is to decide cases without written opinions. This would be far worse because it would compound the problems of nonpublication and at the same time take away from the parties the benefit of a written opinion.
809.23 Annotation
Section 752.41 (3) authorizes the Supreme Court to establish by rule the procedure under which the Court of Appeals decides which of its opinions are to be published. Sub. (1) provides for a committee of judges of the Court of Appeals to make this decision.
809.23 Annotation
As a safeguard against any mistakes as to nonpublication, sub. (4) adopts the procedure of the United States Court of Appeals for the Seventh Circuit in permitting a person to request that an unpublished opinion be published. [Re Order effective July 1, 1978]
809.23 Note
Judicial Council Committee's Note, 1979: Sub. (4) is amended to delete the prior requirement that a motion had to be filed in order to ask the Court of Appeals to have one of its unreported opinions published in the official reports of the Court of Appeals. Requiring a motion to be filed led to confusion in some instances because the person requesting the opinion to be published may not be a party to the appeal decided by the opinion and uncertainty can occur as to who should be served with a copy of the motion and given an opportunity to respond. The requirement to file a motion has been replaced by the need to simply make a request to the Court of Appeals for publication of an unreported opinion. [Re Order effective Jan. 1, 1980]
809.23 Note
Court of Appeals Note, 1997: A request under this paragraph [sub. (4) (c)] does not affect the time under sec. (Rule) 809.62 for filing a petition for review. As in the case of reconsideration of a Court of Appeals decision or opinion, withdrawal of an opinion renders that opinion a nullity. Accordingly, a petition for review of that opinion filed prior to its withdrawal is of no effect, except that the petitioner may incorporate it by reference in a petition for review of the opinion subsequently issued in the appeal or proceeding.
809.23 Note
Court of Appeals Note, 1997: The Court of Appeals recognizes that many of its opinions are issued as per curiam opinions that should not be published under sec. (Rule) 809.23 (1) (b) 5., Stats. This amendment [of sub. (4)] establishes a procedure whereby a person may request that a per curiam opinion be withdrawn, authored and recommended for publication. The amendment also expressly states that an opinion issued by a single judge of the Court of Appeals under s. 752.31 (2) and (3), Stats., will not be published.
809.23 Note
Judicial Council Note, 2008: Subsection (3) was revised to reflect that unpublished Wisconsin appellate opinions are increasingly available in electronic form. This change also conforms to the practice in numerous other jurisdictions, and is compatible with, though more limited than, Fed. R. App. P. 32.1, which abolished any restriction on the citation of unpublished federal court opinions, judgments, orders, and dispositions issued on or after January 1, 2007. The revision to Section (3) does not alter the non-precedential nature of unpublished Wisconsin appellate opinions.
809.23 Annotation
Citing an unpublished opinion of the court of appeals subjected the attorney to a $50 fine. Tamminen v. Aetna Casualty & Surety Co.
109 Wis. 2d 536,
327 N.W.2d 55 (1982).
809.23 Annotation
Citation to an unpublished court of appeals decision to show a 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).
809.23 Annotation
A party's invitation to the court of appeals to consider an unpublished opinion, or even a naked citation to it, violates the letter and spirit of sub. (3). Kuhn v. Allstate Co.
181 Wis. 2d 453,
510 N.W.2d 826 (Ct. App. 1993).
809.23 Annotation
Only the supreme court has the power to overrule, modify, or withdraw language from a published opinion of the court of appeals. Cook v. Cook,
208 Wis. 2d 166,
560 N.W.2d 246 (1997),
95-1963.
809.23 Annotation
The rule against citing unpublished cases is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration. Unless and until the nonpublication rule is changed, violations of this rule will not be tolerated. State v. Milanes, 2006 WI App 259,
297 Wis. 2d 684,
727 N.W.2d 94,
06-0014.
809.23 Annotation
The noncitation rule and the concept of stare decisis. Walther. 61 MLR 581 (1978).
809.23 Annotation
Publication of court of appeals' opinions. Scott. WBB July 1988.
809.23 Annotation
Citing Unpublished Opinions in Wisconsin State and Federal Tribunals. Sefarbi & Zaporski. Wis. Law. Nov. 2004.
