809.107(3)
(3) Duties of clerk of trial court. Within 5 days after a notice under
sub. (2) is filed, the clerk shall:
809.107(3)(a)
(a) If the person filing the notice of intent to appeal under
sub. (2) requests representation by the state public defender for purposes of the appeal, send to the state public defender's appellate intake office a copy of the notice, a copy of the judgment or order specified in the notice and a list of the court reporters for each proceeding in the action in which the judgment or order was entered.
809.107(3)(b)
(b) If the person filing the notice of intent to appeal does not request representation by the state public defender for purposes of the appeal, send or furnish to the person, if the person is appearing without counsel, or to the person's attorney, if one has been retained, a copy of the judgment or order specified in the notice and a list of the court reporters for each proceeding in the action in which the judgment or order was entered.
809.107(4)
(4) Transcript. A person filing a notice of intent to appeal under
sub. (2) shall order a transcript of the reporter's notes within 15 days after filing the notice. The court reporter shall file the transcript with the trial court and serve a copy of the transcript on the person filing the notice of intent to appeal within 30 days after the ordering of the transcript.
809.107(5)
(5) Notice of appeal; transmittal of record. Within 30 days after service of the transcript, the person filing a notice of intent to appeal under
sub. (2) shall file a notice of appeal and docketing statement as provided in
s. 809.10 (1) (a) and serve a copy of the notice on the persons required to be served under
sub. (2). The clerk of the trial 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(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) The appellant shall file a brief within 15 days after the filing of the record on appeal.
809.107(6)(b)
(b) The respondent shall file a brief within 10 days after the service of the appellant's brief.
809.107(6)(c)
(c) 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.
809.107(6)(d)
(d) If the guardian ad litem appointed under
s. 48.235 (1) (c) for the child who is the subject of the proceeding takes the position of the appellant, the guardian ad litem's brief shall be filed within 15 days after the filing of the record on appeal with the court of appeals. If the guardian ad litem takes the position of a respondent, the guardian ad litem's brief shall be filed within 10 days after service of the appellant's brief.
809.107(6)(e)
(e) Cases appealed under this section shall be given preference and shall be taken in an order that ensures that a decision is issued within 30 days after the filing of the appellant's reply brief or statement that a reply brief will not be filed.
809.107(6)(f)
(f) A petition for review of an appeal in the supreme court, if any, shall be filed within 30 days after the date of the decision of the court of appeals. The supreme court shall give preference to a petition for review of an appeal filed under this paragraph.
809.107 History
History: 1993 a. 395;
1995 a. 275.
809.107 Note
NOTE: 1993 Wis. Act 395, which creates this section, contains extensive explanatory notes.
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 W (2d) 681, 530 NW (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 W (2d) 268, 536 NW (2d) 396 (Ct. App. 1995).
809.11
809.11
Rule (Items to be filed and forwarded). 809.11(1)
(1)
Fee. The appellant shall pay the filing fee with the notice of appeal.
809.11(2)
(2) Forwarding to court of appeals. The clerk of the trial court shall forward 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 trial court record of the case maintained pursuant to
s. 59.40 (2) (b) or
(c).
809.11 Note
NOTE: Sub. (2) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (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) Statement on transcript. The appellant shall file with the clerk of the court of appeals within 10 days of the filing of the notice of appeal in the trial court, a statement that a transcript is not necessary for prosecution of the appeal or a statement by the court reporter that the transcript or designated portions thereof have been ordered, arrangements have been made for the payment by the appellant of the cost of the original transcript and all copies for other parties, the date on which the transcript was ordered and arrangements made for payment, and the date on which the transcript is due. The appellant shall 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.
809.11 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii (1979); Sup. Ct. Order, 104 W (2d) xi (1981); Sup. Ct. Order, 146 W (2d) xiii (1988);
1995 a. 201,
224; s. 13.93 (2) (c).
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 Annotation
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 Annotation
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 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 Annotation
See note to 809.10, citing Douglas v. Dewey, 147 W (2d) 328, 433 NW (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 W (2d) xiii (1978);
1981 c. 390 s.
252.
809.12 Note
Judicial Council Committee's Note, 1978: Rule 809.12 details the procedure for seeking temporary relief pending appeal. It follows generally the prior unwritten procedure and Rule 8 (a), FRAP. [Re Order effective July 1, 1978]
809.13
809.13
Rule (Intervention). A person not a party to an appeal may file in the court a petition to intervene in the appeal. A party may file a response to the petition within seven (7) 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) or
(2).
809.13 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978);
1981 c. 390 s.
252.
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 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 nonparty brief. Weina v. Atlantic Mut. Ins. Co. 177 W (2d) 341, 501 NW (2d) 465 (Ct. App. 1993).
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. Any other party may file a response to the motion within 7 days of 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 7 days of service of the order.
809.14(3)
(3) The filing of a motion seeking an order or other relief which may affect the disposition of an appeal or the content of the record or a brief automatically enlarges the time for performing an act required by these rules for a period coextensive with the time between the filing of the motion and its disposition.
809.14 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii;
1991 a. 263;
1995 a. 224.
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 Annotation
Motion to dismiss appeal under (3) does not extend time for filing cross-appeal. Marriage of Rossmiller v. Rossmiller, 151 W (2d) 386, 444 NW (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 paper 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 papers upon which the order is based;
809.15(1)(a)9.
9. Exhibits material to the appeal whether or not received in evidence;
809.15(1)(a)10.
10. Any other paper or exhibit filed in the court requested by a party to be included in the record;
809.15(1)(b)
(b) The clerk of the trial court may request by letter permission of the court to substitute a photocopy for the actual paper or exhibit filed in the trial court.
809.15(2)
(2) Compilation and approval of the record. The clerk of the trial court shall assemble the record in the order set forth in
sub. (1) (a), identify by number or letter each paper, and prepare a list of the numbered or lettered papers. At least 10 days prior to the due date for filing the record in the court, the clerk shall notify in writing each party appearing in the trial court that the record has been assembled and is available for inspection. The clerk shall include with the notice the list of the papers constituting the record.
809.15(3)
(3) Defective record. A party who believes the record, including the transcript of the reporter's notes, is defective or does not accurately reflect what occurred in the trial court may move the court in which the record is located to correct the record. Motions under this subsection may be heard under
s. 807.13.
809.15(4)
(4) Transmittal of the record. The clerk of the trial court shall transmit the record to the court within 20 days from the date of the filing of the transcript or from the date of the filing of a statement that no transcript is necessary for prosecution of the appeal, but in no event more than 90 days after the filing of the notice of appeal unless the court enlarges the time for the transmittal of the record or the preparation of the transcript of the reporter's notes. The clerk of the court shall notify the clerk of the trial court and all parties appearing in the trial court of the date the record was filed.
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 W (2d) xiii; Sup. Ct. Order, 104 W (2d) xi; Sup. Ct. Order, 141 W (2d) xiii (1987);
1987 a. 403.
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 Annotation
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.
809.15 Annotation
Sub. (3). This provision replaces former Rule 251.30 and s. 817.117.
809.15 Annotation
Subs. (4) and (5). The provisions of former Rules 251.29 and 251.28 are included in these subsections. [Re Order effective July 1, 1978]
809.15 Note
Judicial Council Committee's Note, 1981: Sub. (4) is amended to provide for an expedited transmittal of the record for appeals in which a transcript is not necessary for prosecution of the appeal or a transcript is filed in less than the maximum time period permitted by ch. 809. [Re Order effective Jan. 1, 1982]
809.15 Note
Judicial Council Note, 1988: Sub. (3) is amended to allow motions to correct the record to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
809.15 Annotation
Appellant's failure to file motion under (3) did not constitute waiver of right to challenge adequacy of transcript. State v. Perry, 136 W (2d) 92, 401 NW (2d) 748 (1987).
809.15 Annotation
It is the appellant's responsibility to assure the record is complete; where the record is incomplete, it is assumed the missing material supports the trial court ruling. Fiumefreddo v. McLean, 174 W (2d) 10, 496 NW (2d) 226 (Ct. App. 1993).
809.16
809.16
Rule (Transcript of reporter's notes). 809.16(1)
(1) Within 10 days of the filing of the notice of appeal, the appellant shall make arrangements with the reporter for the preparation of a transcript of the reporter's notes of the proceedings and service of copies and file in the court a designation of the portions of the reporter's notes that have been ordered. Any other party may file within 10 days of service of the appellant's notice, a designation of additional portions to be included in the transcript. The appellant shall file within 10 days of the service of the other party's designation the statement required by
s. 809.11 (4) covering the other party's designations. If the appellant fails or refuses to order the designated portions, the other party may order the portions or file a motion with the trial court for an order requiring the appellant to do so.
809.16(3)
(3) The reporter shall serve copies of the transcript on the parties to the appeal, file the transcript with the trial court and notify the clerk of the court within 60 days of the date the transcript was ordered and arrangements made for payment.
809.16(4)
(4) A reporter may obtain an extension for filing the transcript only by motion showing good cause filed in the court and served on all parties to the appeal.
809.16(5)
(5) If a reporter fails to file timely a transcript, the court may declare a reporter ineligible to act as an official court reporter in any court proceeding and prohibit the reporter from performing any private reporting work until the overdue transcript is filed.
809.16 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii (1979);
1981 c. 390 s.
252.
809.16 Cross-reference
Cross-reference: See s.
809.80 concerning serving copies of papers required to be filed in the appellate or trial courts.
809.16 Note
Judicial Council Committee's Note, 1978: Subs. (1) and (2). The procedure in Rule 10 (b), FRAP, for the ordering of the transcript is combined with former s. 817.118. A time limit is placed on ordering the transcript to prevent the failure to do so from being a cause of delay in the appellate process.
809.16 Annotation
Subs. (3), (4) and (5). The reporter is given 60 days from the date the transcript is ordered in which to complete the transcript, a reduction of up to 30 days from the total time allowed in former s. 817.115. The obligation is placed on the reporter rather than the appellant to obtain an extension for filing the transcript because this is a matter not in the control of the appellant. The application for an extension is filed in the Court of Appeals rather than the trial court because of the primary concern of the Court of Appeals with cases pending before it and because of the natural reluctance of the trial judge to deny a request made by his own appointee.
809.16 Annotation
The power of the Court of Appeals to impose sanctions upon a court reporter for failing to file a transcript on time is expressly recognized. These sanctions were among those recommended in 1971 by a special committee appointed by the Supreme Court to study the problem of delayed transcripts.
