809.82 Annotation
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,
02-1869. See also Santana v. Endicott,
2006 WI App 13,
288 Wis. 2d 707,
709 N.W.2d 515,
05-0332.
809.82 Annotation
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, XX-02-0489.
809.82 Annotation
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,
13-0731.
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 percent 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 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.
809.83 History
History: 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.
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 Note
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]
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 s. 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),
97-3191.
809.83 Annotation
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,
01-2436.
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),
96-2753.
809.86
809.86
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.
809.86(2)
(2)
Applicability. This section applies to appeals in the following types of cases:
809.86(2)(e)
(e) 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) to
(d).
809.86(2)(f)
(f) Collateral challenges to judgments or orders entered in a proceeding or case specified in pars.
(a) to
(e).
809.86(3)
(3)
Definition. 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.
809.86(4)
(4)
Briefs. 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.
809.86(5)
(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.
809.86 History
History: Sup. Ct. Order No.
14-01, 2015 WI 21, filed 3-2-15, eff. 7-1-15;
2017 a. 365 s.
111.
809.86 Note
NOTE: 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."
809.86 Note
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.
809.86 Note
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.
809.86 Note
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.
809.86 Note
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.
809.86 Note
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.
809.86 Note
Subsection (4) prohibits the use of any part of a victim or alleged victim's name except initials. Subsection (4) does not prescribe or limit the use of other pseudonyms for victims, as long as they maintain sensitivity and respect for victims.
809.86 Note
Subsection (5) allows an appellate court to make any necessary order to further protect the identity of victims or to protect the identity of other persons not otherwise covered by the rule. It also allows the court to excuse compliance with this section.
