809.107 Note
The amendment to s. 809.107 (4) (b) clarifies the procedure applicable to persons who are not represented by the state public defender and creates time limits applicable to a person who has applied for and has been denied public defender representation. In the latter case, the rule provides an additional 15 days for the person to obtain private counsel and request a copy of the transcript and case record. The time limit is set at 30 days because 15 days will have expired while the public defender's office determines whether the person is eligible for appointed counsel. This time limit commences on the date the notice of intent was filed, rather than the date of the public defender's determination because that determination does not appear in the case record.
809.107 Note
Subsection (4m) includes the last two sentences of former sub. (4). Subsection (4m) also creates a new requirement for the circuit court clerk to indicate the date and manner of service in the case record. The new requirement is necessary because the notice of appeal time limit is measured from the date of service of the case record or transcript, whichever is later.
809.107 Note
The amendment to s. 809.107 (5) (a) clarifies that the time limit for filing a notice of appeal commences 30 days from the later of the service of the transcript or case record. Persons contemplating filing a notice of appeal are better able to assess grounds for relief after reviewing both the transcripts and the circuit court case record. [Re Order No. 05-07 effective July 1, 2006]
809.107 Annotation
Time limits imposed by the legislature in sub. (6) did not constitute unconstitutional infringements on the judiciary, as they are subject to court modification. Time limits imposed by sub. (5) did not violate constitutional guarantees of due process or effective assistance of counsel. Interest of Christopher D.
191 Wis. 2d 681,
530 N.W.2d 34 (Ct. App. 1995).
809.107 Annotation
The no merit appeal procedure under s. 809.32 and the authority to extend the time for filing a notice of appeal under s. 809.82 (2) do not apply to appeals regarding terminations of parental rights. Gloria A. v. State,
195 Wis. 2d 268,
536 N.W.2d 396 (Ct. App. 1995),
95-0315.
809.107 Annotation
While s. 809.32 relating to no merit reports does not apply to appeals under this section, the filing of a no merit report is not precluded if the notice of intent and notice of appeal under subs. (2) and (5) are timely filed and the report is filed within the time for filing the appellant's brief under sub. (6) (a). Brown County v. Edward C.T.
218 Wis. 2d 160,
579 N.W.2d 293 (Ct. App. 1998),
98-0075.
809.107 Annotation
Despite the express service provisions in this section, service does not initiate the appeal and confer jurisdiction, filing does. Carla B. v. Timothy N.
228 Wis. 2d 695,
598 N.W.2d 924 (Ct. App. 1999),
99-0853.
809.11
809.11
Rule (Items to be filed and transmitted). 809.11(1)(1)
Fee. The appellant shall pay the filing fee with the notice of appeal.
809.11(2)
(2) Transmittal of notice of appeal. The clerk of the circuit court shall transmit to the court of appeals, within 3 days of the filing of the notice of appeal, a copy of the notice of appeal, the filing fee, and a copy of the circuit court record of the case maintained pursuant to s.
59.40 (2) (b) or
(c).
809.11(3)
(3) Filing in court of appeals. The clerk of the court of appeals shall file the appeal upon receipt of the items referred to in sub.
(2).
809.11(4)
(4) Requesting transcripts and filing statement on transcript. 809.11(4)(a)(a) The appellant shall request a copy of the transcript of the court reporter's verbatim record of the proceedings for each of the parties to the appeal and make arrangements to pay for the transcript and copies within 14 days after the filing of the notice of appeal.
809.11(4)(b)
(b) 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 the circuit court, and shall serve a copy of the statement on transcript on the other parties to the appeal within 14 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 that is not yet filed in the circuit court 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.
809.11(5)
(5) Additional portions of transcript. Within 14 days after filing of a statement on transcript as required under sub.
(4), any other party may file a designation of additional portions to be included in the transcript and serve a copy of the designation on the appellant. Within 14 days after the filing of such a designation, the appellant shall file the statement required by sub.
(4) (b) covering the other party's designation. If the appellant fails or refuses to request the designated portions, the other party, within 14 days of the appellant's failure or refusal, may request the portions or move the circuit court for an order requiring the appellant to request the designated portions.
809.11(6)
(6) Cross-appeals. Subsections
(4) and
(5) apply to cross- appellants.
809.11(7)(a)
(a) Service of transcript copies. The reporter shall serve copies of the transcript on the parties to the appeal, file the transcript with the circuit court, and notify the clerk of the court of appeals and the parties to the appeal that the transcript has been filed and served within 60 days after the date on which the transcript was requested and arrangements were made for payment under sub.
(4). If additional portions of the transcript are requested under sub.
(5), the reporter shall serve copies of the additional portions of the transcript on the parties to the appeal, file the additional portions of the transcript with the circuit court, and notify the clerk of the court of appeals and the parties to the appeal that the additional portions of the transcript have been filed and served within 60 days after the date on which the additional portions were requested and arrangements were made for payment. If supplementation or correction of the record is ordered under s.
809.14 (3) (b), the reporter shall serve copies of the supplemental or corrected transcript on the parties to the appeal, file the supplemental or corrected transcript with the circuit court, and notify the clerk of the court of appeals and the parties to the appeal that the supplemental or corrected transcript has been filed and served within 20 days after the order for supplementation or correction is entered or within the time limit set by order of the court.
809.11(7)(b)
(b) Return of statement regarding transcript arrangements. The reporter shall sign and send to the appellant, within 5 days after receipt, the statement regarding transcript arrangements and filing required under sub.
(4) (b).
809.11(7)(c)
(c) Extensions. A reporter may obtain an extension for filing the transcript only by motion, showing good cause, that is filed in the court of appeals and served on all parties to the appeal, the clerk of the circuit court and the district court administrator.
809.11(7)(d)
(d) Sanctions. If a reporter fails to timely file a transcript, the court of appeals may declare the reporter ineligible to act as an official court reporter in any court proceeding and may prohibit the reporter from performing any private reporting work until the overdue transcript is filed.
809.11 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order, 146 Wis. 2d xiii (1988);
1995 a. 201,
224;
1997 a. 35; 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.
15-02, 2015 WI 102, 365 Wis. 2d xix; Sup. Ct. Order No.
19-01, 2019 WI 44, 386 Wis. 2d xvii.
809.11 Note
Judicial Council Committee's Note, 1978: This section requires the forwarding of the notice of appeal, filing fee and trial court docket entries immediately, the record to be forwarded when the transcript is completed. This will permit early notice to the court of the pendency of the appeal and will permit it to monitor the appeal during the period when the record and transcript are being prepared.
809.11 Note
Another purpose of this section is to expedite the appellate process by requiring the appellant to order the transcript, if one is necessary, within 10 days of the filing of the notice of appeal. The filing of the statement of the reporter that the transcript has been ordered and arrangements made for payment for it will prevent any delay resulting from counsel not ordering the transcript immediately.
809.11 Note
Docket entries are required by s. 59.39 (2) and (3). In order to comply with this section, the docket entries will have to be kept. [Re Order effective July 1, 1978]
809.11 Note
Judicial Council Committee's Note, 1979: Sub. (4) is amended to clarify that the statement on transcript that is initiated by the appellant must include information that arrangements have been made for the preparation and payment of copies of the transcript for the other parties to the appeal. The language clarification rectifies a present ambiguity in chapter 809 in regard to who is responsible for initiating the arrangements for preparation and payment of copies of the transcript as compared with just the original. The appellant must make all arrangements for the original and copies of a transcript and is responsible for payment. Cost of the preparation of the transcript is included in allowable costs under s. 809.25. [Re Order effective Jan. 1, 1980]
809.11 Note
Judicial Council Committee's Note, 1981: Sub. (4) is amended to require that the appellant file a copy of the statement on transcript with the clerk of the trial court within 10 days of the filing of the notice of appeal. This filing will notify the trial court clerk as to whether a transcript is necessary for prosecution of the appeal and, if so, the date on which the transcript is due. [Re Order effective Jan. 1, 1982]
809.11 Note
Judicial Council Note, 2001: The revision places all of the rules concerning transcript preparation and service in one statute, and eliminates the need for former s. 809.16. Subsection (4) combines and recreates former s. 809.11 (4) and the first sentence of former s. 809.16 (1). Subsection (5) recreates the remaining portions of former s. 809.16 (1). The time limits in subs. (4) and (5) are changed from 10 to 14 days. See the comment to s. 808.07 (6) concerning time limits. No other substantive changes in subs. (4) and (5) were intended. Subsection (6) recreates former s. 809.16 (2). Subsection (7) (a) recreates former s. 809.16 (3). Subsection (7) (b) is created to specify a time within which the court reporter must furnish a statement regarding transcript arrangements to the appellant or cross-appellant. Subsection (7) (c) recreates former s. 809.16 (4). Subsection (7) (d) recreates former s. 809.16 (5). [Re Order No. 00-02 effective July 1, 2001]
809.11 Note
Judicial Council Note, 2002: Subsection (4) (b) is amended for consistency in terminology and to clarify that the court reporters' statement regarding transcript arrangements, sometimes referred to as the court reporters' certification, is required only for a transcript that has not been filed in circuit court when the statement on transcript is filed, consistent with the clerk of the court of appeals' interpretation and enforcement practices.
809.11 Note
Subsection (5) is amended to create a time limit for the completion of the transcript ordering process. If the appellant does not request the preparation of the additional portions of transcript that have been designated by another party within 14 days of the designation, the other party may either request the preparation of the portions from the reporter or move the circuit court for an order requiring the appellant to request the designated portions. This revision creates a 14-day time period for the other party to take action to obtain the additional portions of the record.
809.11 Note
Subsection (7) (a) is amended to clarify the time limits for the preparation of additional portions of the transcript requested under s. 809.11 (5), and to require the court reporter to notify the clerk of the court of appeals and the parties to the appeal when a transcript is filed and served.
809.11 Note
Subsection (7) (b) is amended to correct the cross-reference to the rule in sub. (4) (b) that requires the reporter to file a statement regarding transcript arrangements.
809.11 Note
Subsection (7) (c) is amended to require a court reporter who files a motion to extend the time within which to prepare a transcript to serve a copy of the motion on the clerk of the circuit court and the district court administrator. Early notice that a reporter has requested additional time to prepare a transcript will enable the clerk and the district court administrator to provide workload relief to the reporter if deemed appropriate. [Re Order No. 02-01 effective January 1, 2003]
809.11 Annotation
Failure to submit the docketing fee within the time specified for filing the notice of appeal does not deprive the court of appeals of jurisdiction. The notice of appeal, not the docketing fee, vests the court with jurisdiction. Douglas v. Dewey,
147 Wis. 2d 328,
433 N.W.2d 243 (1989).
809.12
809.12
Rule (Motion for relief pending appeal). A person seeking relief under s.
808.07 shall file a motion in the trial court unless it is impractical to seek relief in the trial court. A motion in the court must show why it was impractical to seek relief in the trial court or, if a motion had been filed in the trial court, the reasons given by the trial court for its action. A person aggrieved by an order of the trial court granting the relief requested may file a motion for relief from the order with the court. A judge of the court may issue an ex parte order granting temporary relief pending a ruling by the court on a motion filed pursuant to this rule. A motion filed in the court under this section must be filed in accordance with s.
809.14.
809.12 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252.
809.13
809.13
Rule (Intervention). A person who is not a party to an appeal may file in the court of appeals a petition to intervene in the appeal. A party may file a response to the petition within 11 days after service of the petition. The court may grant the petition upon a showing that the petitioner's interest meets the requirements of s.
803.09 (1),
(2), or
(2m).
809.13 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii;
2017 a. 369.
809.13 Note
Judicial Council Committee's Note, 1978: Former s. 817.12 (6) permitted the addition of parties but did not set the criteria for doing so. This void is filled by making the intervention rule in the Rules of Civil Procedure applicable to proceedings in the Court of Appeals. [Re Order effective July 1, 1978]
809.13 Note
Judicial Council Note, 2001: The 7-day time limit has been changed to 11 days. Please see the comment to s. 808.07 (6) concerning time limits. [Re Order No. 00-02 effective July 1, 2001]
809.13 Annotation
A party who could have, but failed to, file a timely notice of appeal may not participate in the appeal as an intervenor or by filing a non-party brief. Weina v. Atlantic Mutual Insurance Co.
177 Wis. 2d 341,
501 N.W.2d 465 (Ct. App. 1993).
809.13 Annotation
A non-party to a circuit court action may intervene in an appeal brought by another party, even after the time for filing a notice of appeal has passed. City of Madison v. WERC,
2000 WI 39,
234 Wis. 2d 550,
610 N.W.2d 94,
99-0500.
809.14(1)(1)
A party seeking an order or other relief in a case shall file a motion for the order or other relief. The motion must state the order or relief sought and the grounds on which the motion is based and may include a statement of the position of other parties as to the granting of the motion. A motion may be supported by a memorandum. Except as provided in sub.
(1m), any other party may file a response to the motion within 11 days after service of the motion.
809.14(1m)
(1m) If a motion is filed in an appeal under s.
809.107, any other party may file a response to the motion within 5 days after service of the motion.
809.14(2)
(2) A motion for a procedural order may be acted upon without a response to the motion. A party adversely affected by a procedural order entered without having had the opportunity to respond to the motion may move for reconsideration of the order within 11 days after service of the order.
809.14(3)(a)(a) The filing of a motion seeking an order or other relief which may affect the disposition of an appeal or the content of a brief, or a motion seeking consolidation of appeals, automatically tolls the time for performing an act required by these rules from the date the motion was filed until the date the motion is disposed of by order.
809.14(3)(b)
(b) The filing of a motion to supplement or correct the record automatically tolls the time for performing an act required by these rules from the date the motion was filed until the date the motion is disposed of by order. If a motion to correct or supplement the record is granted, time limits for performing an act required by these rules shall be tolled from the date on which the motion was filed until the date on which the supplemental or corrected record return is filed, except that the time for preparation of supplemental or corrected transcripts is governed by s.
809.11 (7) (a).
809.14(3)(c)
(c) The moving party shall serve the clerk of circuit court with any motion filed in the court of appeals under this subsection.
809.14 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii;
1991 a. 263;
1995 a. 224; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No.
05-07, 2006 WI 37, 287 Wis. 2d xix.
809.14 Note
Judicial Council Committee's Note, 1978: The motion procedure under former Rule 251.71 is continued except that the time for replying to a motion is reduced from 10 to 7 days. A response is not required before action can be taken on a procedural motion because these motions include matters previously handled by letter request or which usually do not adversely affect the opposing party. If an opposing party is adversely affected by a procedural order, he has the right to request the court to reconsider it. Procedural orders include the granting of requests for enlargement of time, to file an amicus brief, or to file a brief in excess of the maximum established by the rules. This section is based on Federal Rules of Appellate Procedure, Rule 27. Sub. (3) modifies the prior practice under which the filing of any motion stayed any due date until 20 days after the motion was decided. This could result in an unintentional shortening of the time in which a brief had to be filed. It could also result in an unnecessary delay if a ruling on the motion would not affect the outcome of the case, the issues to be presented to the court, or a brief or the record. [Re Order effective July 1, 1978]
809.14 Note
Judicial Council Committee's Note, 1979: Sub. (1) is amended by deleting a provision that required only an original and one copy of a motion be filed with an appellate court. With the amendment, the number of copies of a motion to be filed is now governed by 809.81 on the form of papers to be filed with an appellate court, which requires in sub. (2) that 4 copies of a paper be filed with the Court of Appeals and 8 copies with the Supreme Court. [Re Order effective Jan. 1, 1979]
809.14 Note
Judicial Council Note, 2001: The 7-day time limits in subs. (1) and (2) have been changed to 11 days. Please see the comment to s. 808.07 (6) concerning time limits. Subsection (3) (a) was revised to include consolidation motions within the tolling provision. Subsection (3) (b) creates a tolling provision when a motion to supplement or correct the record is filed. Subsection (3) (c) creates a service requirement for motions affecting the time limits for transmittal of the record. [Re Order No. 00-02 effective July 1, 2001]
809.14 Note
Judicial Council Note, 2006: The amendment to s. 809.14 (1) and the creation of s. 809.14 (1m) to establish a shorter response time to appellate motions should advance the ultimate resolution of TPR appeals. [Re Order No. 05-07 effective July 1, 2006]
809.14 Annotation
A motion to dismiss an appeal under sub. (3) does not extend the time for filing a cross-appeal. Rossmiller v. Rossmiller,
151 Wis. 2d 386,
444 N.W.2d 445 (Ct. App. 1989).
809.15
809.15
Rule (Record on appeal). 809.15(1)(a)(a) The record on appeal consists of the following unless the parties stipulate to the contrary:
809.15(1)(a)1.
1. The initiating document by which the action or proceeding was commenced;
809.15(1)(a)5.
5. Verdict, or findings of the court, and order based thereon;
809.15(1)(a)8.
8. Order made after judgment relevant to the appeal and documents upon which the order is based;
809.15(1)(a)9.
9. Exhibits whether or not received in evidence, including photographs, video recordings, audio recordings, and computer media such as discs or flash drives, except that physical evidence, models, charts, diagrams, and photographs exceeding 8.5 x 11 inches in size shall not be included unless requested by a party to be included in the record;
809.15(1)(a)10.
10. Any other document filed in the court requested by a party to be included in the record;
809.15(1)(b)
(b) The clerk of the circuit court may request by letter permission of the court to substitute a photocopy for the actual paper or exhibit filed in the circuit court. A photocopy does not include a document that the clerk of the circuit court has electronically scanned into the court record as permitted under
SCR 72.05.
809.15(1)(c)
(c) For purposes of preparing the record on appeal, if the original record has been discarded as permitted under
SCR 72.03 (3), the electronically scanned document constitutes the official court record.
809.15(2)
(2) Compilation and approval of the record. The clerk of circuit court shall assemble the record in the order set forth in sub.
(1) (a), identify by number, date of filing, and title each document, and prepare a list of the numbered documents. If the record is in an electronic format, the clerk shall also include in the list of numbered documents a list of exhibits not electronically maintained that are part of the record on appeal. At least 10 days before the due date for filing the record in the court, the clerk of the circuit court shall notify in writing each party appearing in the circuit court that the record has been assembled and is available for inspection. The clerk of the circuit court shall include with the notice the list of the documents constituting the record.
809.15(3)
(3) Defective record. A party who believes that the record, including the transcript of the court reporter's verbatim record, is defective or that the record does not accurately reflect what occurred in the circuit court may move the court in which the record is located to supplement or correct the record. Motions under this subsection may be heard under s.
807.13.
809.15(4)(a)
(a) Transmittal of the record. The clerk of the circuit court shall transmit the record to the court of appeals within 20 days after the date of the filing of the transcript designated in the statement on transcript or within 20 days after the date of the filing of a statement on transcript indicating that no transcript is necessary for prosecution of the appeal, unless the court extends the time for transmittal of the record or unless the tolling provisions of s.
809.14 (3) extend the time for transmittal of the record. If additional portions of the transcript are requested under s.
809.11 (5), the clerk of the circuit court shall transmit the record to the court of appeals within 20 days after the date of the filing of the additional portions of the transcript. If the record is transmitted electronically, the clerk of the circuit court shall transmit by traditional methods any original documents or exhibits not electronically maintained.
809.15(4)(b)
(b) Late transcript. If the reporter fails to file the transcript within the time limit specified in the statement on transcript, the clerk of circuit court shall transmit the record not more than 90 days after the filing of the notice of appeal, unless the court of appeals extends the time for filing the transcript of the court reporter's verbatim record. If the court extends the time for filing the transcript of the court reporter's verbatim record, the clerk of circuit court shall transmit the record within 20 days after the date that the transcript is filed.
809.15(4)(c)
(c) Supplementation or correction of record. Notwithstanding pars.
(a) and
(b), if a motion to supplement or correct the record is filed in circuit court, the clerk of circuit court may not transmit the record until the motion is determined. A copy of any motion to supplement or correct the record that is filed in circuit court shall be sent to the clerk of the court of appeals. The circuit court shall determine, by order, the motion to supplement or correct the record within 14 days after the filing or the motion is considered to be denied and the clerk of circuit court shall immediately enter an order denying the motion and shall transmit the record to the court of appeals within 20 days after entry of the order. If the circuit court grants the motion, the clerk of circuit court shall transmit the supplemented or corrected record to the court of appeals within 20 days after entry of the order or filing of the supplemental or corrected record in the circuit court, whichever is later.
809.15(4m)
(4m) Notice of filing of record. The clerk of the court of appeals shall notify the clerk of circuit court and all parties appearing in the circuit court of the date on which the record was filed. When the record is transmitted electronically and the clerk of the circuit court must transmit original documents or exhibits not electronically maintained by traditional methods, the date on which the record was filed is the date the electronic transmission and index was received by the clerk of the court of appeals.
809.15(5)
(5) Agreed statement in lieu of record. The parties may file in the court within the time prescribed by sub.
(4) an agreed statement of the case in lieu of the record on appeal. The statement must:
809.15(5)(a)
(a) Show how the issues presented by the appeal arose and were decided by the trial court; and
809.15(5)(b)
(b) Recite sufficient facts proved or sought to be proved as are essential to a resolution of the issues presented.
809.15 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1987 a. 403; 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.
12-05, 2012 WI 112, 344 Wis. 2d xxxiii; Sup. Ct. Order No.
15-02, 2015 WI 102, 365 Wis. 2d xix;
2017 a. 365 s.
111; Sup. Ct. Order No.
19-01, 2019 WI 44, 386 Wis. 2d xvii.
809.15 Note
Judicial Council Committee's Note, 1978: Sub. (1) substantially embodies former s. 251.25. It also permits the filing of a photocopy instead of the original record but only with the approval of the Court of Appeals, changing to some extent prior Rules 251.25 (13) and 251.27. Under this section the parties can stipulate to exclude some items from the record, but this should be done before the clerk assembles the record.
809.15 Note
Sub. (2). The responsibility for having the record assembled and transmitted to the Court of Appeals is transferred from the appellant to the clerk of the trial court. It is not necessary to have the attorneys present at the pagination of the record. The federal procedure set forth in Rule 11 (b), FRAP, under which the clerk assembles the record and then notifies the parties so that they can inspect the record prior to it being sent to the Court of Appeals is adopted. Also adopted is the federal procedure of the clerk preparing a list of all the papers in the record. The former system of numbering each page in the record consecutively is abandoned for the simpler practice of assigning a letter or number to each document and using its internal page reference. Thus, the reference to the third page of the first document would be A-3 and to the fifth page of the second document B-5.