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(3) Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.
809.23(4)
(4) Request for publication. A person may at any time request the court to have an unreported opinion published in the official reports. A copy of the request shall be served pursuant to
s. 809.80 on the parties to the appeal or other proceeding in which the opinion was filed.
809.23 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii;
1981 c. 390 s.
252; Sup. Ct. Order, 109 W (2d) xiii (1982); Sup. Ct. Order, 118 W (2d) xiii (1984);
1991 a. 189.
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There are several reasons why an unpublished opinion should not be cited: (1) The type of opinion written for the benefit of the parties is different from an opinion written for publication and often should not be published without substantial revision; (2) If unpublished opinions could be cited, services that publish only unpublished opinions would soon develop forcing the treatment of unpublished opinions in the same manner as published opinions thereby defeating the purpose of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 Annotation
Attorney fined $50 for citing unpublished opinion of court of appeals. Tamminen v. Aetna Casualty & Surety Co. 109 W (2d) 536, 327 NW (2d) 55 (1982).
809.23 Annotation
Sub. (3) does not ban citation to circuit court opinions. Brandt v. LIRC, 160 W (2d) 353, 466 NW (2d) 673 (Ct. App. 1991).
809.23 Annotation
Citation to unpublished court of appeals decision to show conflict between districts for purposes of 809.62 (1) (d) is appropriate. State v. Higginbotham, 162 W (2d) 978, 471 NW (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 W (2d) 453, 510 NW (2d) 826 (Ct. App. 1993).
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.
809.24
809.24
Rule (Reconsideration). The court of appeals may on its own motion reconsider a decision or opinion at any time prior to remittitur if no petition for review under
s. 809.62 is filed or within 30 days of the filing of a petition for review. A motion for reconsideration is not permitted.
809.24 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 104 W (2d) xi (1981);
1981 c. 390 s.
252.
809.24 Note
Judicial Council Committee's Note, 1981: Rule 809.24 is amended to refer properly to the petition for supreme court review of decisions of the court of appeals. The rule has been redrafted stylistically. No substantive change is intended. [Re Order effective Jan. 1, 1982]
809.25
809.25
Rule (Costs and fees). 809.25(1)(a)(a) Costs in a civil appeal are allowed as follows unless otherwise ordered by the court:
809.25(1)(a)1.
1. Against the appellant before the court of appeals when the appeal is dismissed or the judgment or order affirmed;
809.25(1)(a)2.
2. Against the respondent before the court of appeals when the judgment or order is reversed;
809.25(1)(a)3.
3. Against the petitioner before the supreme court when the judgment of the court of appeals is affirmed by the supreme court;
809.25(1)(a)4.
4. Against the respondent before the supreme court when the judgment of the court of appeals is reversed by the supreme court and the costs in the court of appeals are canceled and may be taxed by the supreme court as costs against another party.
809.25(1)(b)1.
1. Cost of printing and assembling the number of copies and briefs and appendices required by the rules, not to exceed the rates generally charged in Dane County, Wisconsin, for offset printing of camera-ready copy and assembling;
809.25(1)(b)3.
3. Cost of the preparation of the transcript of testimony or for appeal bonds;
809.25(1)(b)4.
4. Fees of the clerk of the trial court for preparation of the record on appeal;
809.25(1)(c)
(c) A party seeking to recover costs in the court shall file a statement of the costs within 14 days of the filing of the decision of the court. An opposing party may file within seven days of the service of the statement a motion objecting to the statement of costs.
809.25(1)(d)
(d) Costs allowed by the court are taxed by the clerk of the court of appeals irrespective of the filing by a party of a petition for review in the supreme court. In the event of review by the supreme court, costs are taxed by the clerk of the supreme court as set forth in
pars. (a) and
(b). The clerk of the supreme court shall include in the remittitur the costs allowed in the court. The clerk of circuit court shall enter the judgment for costs in accordance with
s. 806.16.
809.25(2)(a)(a) The clerk of the court shall charge the following fees:
809.25(2)(a)1.
1. For filing an appeal, cross-appeal, petition for review, petition to bypass, or other proceeding, $150.
809.25(2)(a)2.
2. For making a copy of a record, paper, or opinion of the court and comparing it to the original, 40 cents for each page.
809.25(2)(a)3.
3. For comparing for certification of a copy of a record, entry or paper, when the copy is furnished by the person requesting its certification, 25 cents for each page.
809.25(2)(a)4.
4. For a certificate and seal, $1, except for an attorney's certificate of good standing, $3.
809.25(2)(b)
(b) The state is exempt from payment of the fees set forth in
par. (a) 1. to
4., except that the clerk is not obligated to supply the state with free copies of opinions.
809.25(2)(c)
(c) The clerk of the court of appeals may refuse to file, record, certify, or render any other service without prepayment of the fees established by this section.
809.25(3)(a)(a) If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees and reasonable attorney fees under this section. A motion for costs, fees and attorney 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.
809.25(3)(b)
(b) The costs, fees and attorney fees awarded under
par. (a) may be assessed fully against the appellant or cross-appellant or the attorney representing the appellant or cross-appellant or may be assessed so that the appellant or cross-appellant and the attorney each pay a portion of the costs, fees and attorney fees.
809.25(3)(c)
(c) In order to find an appeal or cross-appeal to be frivolous under
par. (a), the court must find one or more of the following:
809.25(3)(c)1.
1. The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
809.25(3)(c)2.
2. The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
809.25 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);
1981 c. 316,
317;
1981 c. 390 ss.
220,
252;
1985 a. 29; Sup. Ct. Order, 151 W (2d) xvii (1989);
1995 a. 224.
809.25 Note
Judicial Council Committee's Note, 1978: Most of the provisions of former ss. 251.23 and 251.90 are retained. The major change is to provide that execution for costs in the Court of Appeals is to be had in the trial court in accordance with Rule 806.16 rather than in the Court of Appeals. The Judicial Council did not review the adequacy of the fees and thus made no recommendations on them. It is suggested, however, that many of the fees appear to be out of date and should be revised. This should be done in connection with a general review of fees in all courts. [Re Order effective July 1, 1978]
809.25 Note
Judicial Council Committee's Note, 1979: Sub. (1) (a) and (d), which governs costs that are allowed in an appeal to the Court of Appeals or a review by the Supreme Court, have been amended for purposes of clarification.
809.25 Annotation
A provision has been added to clarify that costs are taxed by the clerk in the Court of Appeals irrespective of the filing of a petition for review in the Supreme Court. In the event of review by the Supreme Court, a provision has been added specifically stating that costs are allowed against a petitioner in a case before the Supreme Court when the decision of that court affirms a judgment of the Court of Appeals.
809.25 Annotation
An additional clarifying provision has been added allowing costs against a respondent in a case before the Supreme Court when the petitioner before the Supreme Court has achieved reversal of a judgment of the Court of Appeals. The provision further states that the costs that were allowed when the case was originally decided by the Court of Appeals are canceled. [Re Order effective Jan. 1, 1980]
809.25 Note
Judicial Council Committee's Note, 1981: Sub. (2) (a) 1. is amended to correct the reference from a petition to appeal to a petition for review. The supreme court reviews the decisions of the court of appeals. [Re Order effective Jan. 1, 1982]
809.25 Annotation
Appeal was frivolous because assertion of trial court error was without any reasonable basis in law or equity and there was no argument that existing law should have been extended, modified or reversed. In Matter of Estate of Koenigsmark, 119 W (2d) 394, 351 NW (2d) 169 (Ct. App. 1984).
809.25 Annotation
Tax protesters appealing without counsel were properly assessed costs under (3) (c) 2. Tracy v. Department of Revenue, 133 W (2d) 151, 394 NW (2d) 756 (Ct. App. 1986).
809.25 Annotation
Restricting access to courts as sanction for frivolous action upheld where order was narrowly tailored to balance interests of public access to courts, res judicata and public's right not to have frivolous litigation be drain on public resources. Minniecheske v. Griesbach, 161 W (2d) 743, 468 NW (2d) 760 (Ct. App. 1991).
809.26
809.26
Rule (Remittitur). 809.26(1)(1) The clerk of the court shall transmit to the trial court the judgment and opinion of the court and the record in the case filed pursuant to
s. 809.15 31 days after the filing of the decision of the court. If a petition for review is filed pursuant to
s. 809.62, the transmittal is stayed until the supreme court rules on the petition.
809.26(2)
(2) If the supreme court grants a petition for review of a decision of the court of appeals, the supreme court upon filing its decision shall transmit to the trial court the judgment and opinion of the supreme court and the complete record in the case unless the case is remanded to the court of appeals with specific instructions.
809.26 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii (1979);
1981 c. 390 s.
252.
809.26 Note
Judicial Council Committee's Note, 1978: Former s. 817.35 is embodied in this section except that the time for issuance of the remittitur is reduced from 60 to 31 days. [Re Order effective July 1, 1978]
809.26 Note
Judicial Council Committee's Note, 1979: This section is amended by creating a sub. (2) that specifically authorizes the Supreme Court after filing its decision in the review of a decision from the Court of Appeals to remit directly to the trial court the complete record of the case without the necessity of returning the case to the Court of Appeals for remittitur to the trial court. The only exception to this new procedure will occur when the Supreme Court remands a case to the Court of Appeals with some specific instructions that the Court of Appeals is required to follow. [Re Order effective Jan. 1, 1980]
FELONY APPEAL PROCEDURE IN COURT OF APPEALS
809.30
809.30
Rule (Appeals in felony cases). 809.30(1)(a)
(a) "Postconviction relief" means, in a felony or misdemeanor case, an appeal or a motion for postconviction relief other than a motion under
s. 973.19 or
974.06. In a
ch. 48,
51,
55 or
938 case, other than a termination of parental rights case under
s. 48.43, it means an appeal or a motion for reconsideration by the trial court of its final judgment or order; in such cases a notice of intent to pursue such relief or a motion for such relief need not be styled as seeking "postconviction" relief.
809.30(1)(b)
(b) "Sentencing" means, in a felony or misdemeanor case, the imposition of a sentence, fine or probation. In a
ch. 48,
51,
55 or
938 case, other than a termination of parental rights case under
s. 48.43, it means the entry of the trial court's final judgment or order.
809.30(2)
(2) Appeal or postconviction motion by defendant. 809.30(2)(a)(a) A defendant seeking postconviction relief in a felony case shall comply with this section. Counsel representing the defendant at sentencing shall continue representation by filing a notice under
par. (b) if the defendant desires to pursue postconviction relief unless sooner discharged by the defendant or by the trial court.
809.30(2)(b)
(b) Within 20 days of the date of sentencing, the defendant shall file in the trial court and serve on the district attorney a notice of intent to pursue postconviction relief. The notice shall include the following:
809.30(2)(b)2.
2. An identification of the judgment or order from which the defendant intends to seek postconviction relief and the date it was granted or entered.
809.30(2)(b)3.
3. The name and address of the defendant and the defendant's trial counsel.
809.30(2)(b)4.
4. Whether defendant's trial counsel was appointed by the state public defender and if so, whether the defendant's financial circumstances have materially improved since the date the defendant's indigency was determined.
809.30(2)(b)5.
5. Whether the defendant requests the state public defender to appoint counsel for purposes of postconviction relief.
809.30(2)(b)6.
6. Whether a defendant who does not request the state public defender to appoint counsel will represent himself or herself or will be represented by retained counsel. If the defendant has retained counsel, counsel's name and address shall be included.
809.30(2)(c)
(c) Within 5 days after a notice under
par. (b) is filed, the clerk shall:
809.30(2)(c)1.
1. If the defendant requests representation by the state public defender for purposes of postconviction relief, 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, a list of the court reporters for each proceeding in the action in which the judgment or order was entered and a list of those proceedings in which a transcript has been filed in the court record at the request of trial counsel.
809.30(2)(c)2.
2. If the defendant does not request representation by the state public defender, send or furnish to the defendant, if the defendant is appearing without counsel, or to the defendant's attorney if one has been retained, a copy of the judgment or order specified in the notice, a list of the court reporters for each proceeding in the action in which the judgment or order was entered and a list of those proceedings in which a transcript has been filed in the court record at the request of trial counsel.
809.30(2)(d)
(d) Except as provided in this paragraph, whenever a defendant whose trial counsel is appointed by the state public defender files a notice under
par. (b) requesting public defender representation for purposes of postconviction relief, the district attorney may, within 5 days after the notice is served and filed, file in the trial court and serve upon the state public defender a request that the defendant's indigency be redetermined before counsel is appointed or transcripts are ordered. This paragraph does not apply to a child who is entitled to be represented by counsel under
s. 48.23 or
938.23.
809.30(2)(e)
(e) Within 30 days after the filing of a notice under
par. (b) requesting representation by the state public defender for purposes of postconviction relief, the state public defender shall appoint counsel for the defendant and order a transcript of the reporter's notes, except that if the defendant's indigency must first be determined or redetermined, the state public defender shall do so, appoint counsel and order transcripts within 50 days after the notice under
par. (b) is filed.
809.30(2)(f)
(f) A defendant who does not request representation by the state public defender for purposes of postconviction relief shall order a transcript of the reporter's notes within 30 days after filing a notice under
par. (b).
809.30(2)(fm)
(fm) A child who has filed a notice of intent to pursue relief from a judgment or order entered in a
ch. 48 or
938 proceeding shall be furnished at no cost a transcript of the proceedings or as much of it as is requested. To obtain the transcript at no cost, an affidavit must be filed stating that the person who is legally responsible for the child's care and support is financially unable or unwilling to purchase the transcript.
809.30(2)(g)
(g) The court reporter shall file the transcript with the trial court and serve a copy of the transcript on the defendant within 60 days of the ordering of the transcript. Within 20 days of the ordering of a transcript of postconviction proceedings brought under
sub. (2) (h), the court reporter shall file the original with the trial court and serve a copy of that transcript on the defendant. The reporter may seek an extension under
s. 809.16 (4) for filing and serving the transcript.
809.30(2)(h)
(h) The defendant shall file a notice of appeal or motion seeking postconviction relief within 60 days of the service of the transcript.
