809.10 Annotation
Service of the notice of appeal on opposing parties is not necessary to confer jurisdiction on the court of appeals. Rhyner v. Sauk County,
118 Wis. 2d 324,
348 N.W.2d 588 (Ct. App. 1984).
809.10 Annotation
Failure to submit the docketing fee within the time specified for filing a 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).
809.10 Annotation
Federal prohibition against stacking cross-appeals is not applicable under sub. (2) (b). The time limits under sub. (1) (b) are jurisdictional and may not be extended. Estate of Donnell v. Milwaukee,
160 Wis. 2d 529,
466 N.W.2d 670 (Ct. App. 1991).
809.10 Annotation
A notice of appeal may not be filed by facsimile transmission. Only papers that do not require a filing fee may be filed by fax. Pratsch v. Pratsch,
201 Wis. 2d 491,
548 N.W.2d 852 (Ct. App. 1996).
809.10 Annotation
A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. To do so constitutes practicing law without a license in violation of s. 757.30 and voids the appeal. Requiring a lawyer to represent a corporation in filing the notice is constitutional. Jadair Inc. v. United States Fire Insurance Co.
209 Wis. 2d 187,
561 N.W.2d 718 (1997).
809.10 Annotation
Section 799.06 (2) authorizes a non-lawyer employee to represent a party to a small claims action at the appellate as well ,as trial court, level and is an exception to the rule stated in Jadair. Holz v. Busy Bees Contracting, Inc.
223 Wis. 2d 598,
589 N.W.2d 633 (Ct. App. 1998).
809.10 Annotation
Mechanics of making an appeal in the court of appeals. Felsenthal, WBB October 1981.
809.10 Annotation
Appellate review: Choosing and shaping the proper standard. Leavell. WBB Apr. 1987.
809.10 Annotation
Changing standards of review. Leavell. WBB May 1987.
809.103
809.103
Appeals in proceedings related to prisoners. 809.103(2)
(2) The appellate court shall notify the department of justice by a procedure developed by the director of state courts in cooperation with the department of justice when the appellate court rules that an appeal or supervisory writ proceeding brought by a prisoner meets any of the following conditions:
809.103(2)(b)
(b) Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.
809.103(2)(c)
(c) Seeks review of a denial of monetary damages from a defendant who is immune from such relief.
809.103(2)(d)
(d) There is no ground upon which relief may be granted.
809.103(3)
(3) A prisoner is not relieved from paying the full filing fee related to an appeal or supervisory writ proceeding if the appellate court dismisses the appeal or supervisory writ proceeding for one of the reasons listed in
sub. (2).
809.103 History
History: 1997 a. 133.
809.105
809.105
Appeals in proceedings related to parental consent prior to performance of abortion. 809.105(1)
(1)
Applicability. This section applies to the appeal of an order under
s. 48.375 (7) and supersedes all inconsistent provisions of this chapter.
809.105(2)
(2) Initiating an appeal. Only a minor may initiate an appeal under this section. The minor shall initiate the appeal by filing, or by a member of the clergy filing on the minor's behalf, a notice of appeal with the clerk of the trial court in which the order appealed from was entered and shall specify in the notice of appeal the order appealed from. At the same time, the minor or member of the clergy shall notify the court of appeals of the filing of the appeal by sending a copy of the notice of appeal to the clerk of the court of appeals. The clerk of the trial court shall assist the minor or member of the clergy in sending a copy of the notice of appeal to the clerk of the court of appeals. The minor may use the name "Jane Doe" instead of her name on the notice of appeal and all other papers filed with the court of appeals.
809.105(3)(a)(a)
Fee. No fee for filing an appeal in the court of appeals under this section may be required of a minor or of a member of the clergy who files an appeal under this section on behalf of the minor.
809.105(3)(b)
(b)
Forwarding to court of appeals. The clerk of the trial court shall forward to the court of appeals within 3 calendar days after the filing of the notice of appeal a copy of the notice of appeal and a copy of the trial court case record maintained as provided in
s. 59.40 (2) (b), using the name "Jane Doe" instead of the minor's name, and the record on appeal, assembled as provided in
sub. (4).
809.105(3)(c)
(c)
Filing in court of appeals. The clerk of the court of appeals shall file the appeal immediately upon receipt of the items specified in
par. (b).
809.105(3)(d)
(d)
Statement on transcript. A minor or member of the clergy may not be required to file a statement on transcript in an appeal under this section.
809.105(4)
(4) Record on appeal. The record in an appeal under this section consists of the following:
809.105(4)(c)
(c) The findings of fact, conclusions of law and final order of the trial court.
809.105(4)(d)
(d) Any other order made that is relevant to the appeal and the papers upon which that other order is based.
809.105(4)(e)
(e) Exhibits material to the appeal, whether or not received in evidence.
809.105(4)(f)
(f) Any other paper or exhibit filed in the trial court that the minor requests to have included in the record.
809.105(4)(j)
(j) If the trial court appointed a guardian ad litem under
s. 48.235 (1) (d), a letter written to the court of appeals by the guardian ad litem indicating his or her position on whether or not the minor is mature and well-informed enough to make the abortion decision on her own and whether or not the performance or inducement of an abortion is in the minor's best interests.
809.105(5)
(5) Transcript of reporter's notes. At the time that a minor or member of the clergy files a notice of appeal, the minor or member of the clergy shall make arrangements with the reporter for the preparation of a transcript of the reporter's notes of the proceedings under
s. 48.375 (7). The reporter shall file the transcript with the trial court within 2 calendar days after the notice of appeal is filed. The county of the court that held the proceeding under
s. 48.375 (7) shall pay the expense of transcript preparation under this subsection.
809.105(6)
(6) Voluntary dismissal. A minor may dismiss an appeal under this section by filing a notice of dismissal in the court of appeals.
809.105(7)
(7) Briefs. Briefs are not required to be filed in appeals under this section.
809.105(8)
(8) Assignment and advancement of cases. The court of appeals shall take cases appealed under this section in an order that ensures that a judgment is made within 4 calendar days after the appeal has been filed in the court of appeals. The time limit under this subsection may be extended with the consent of the minor and her counsel, if any, or the member of the clergy who initiated the appeal under this section, if any.
809.105(8m)
(8m) Oral argument. If the court of appeals determines that a case appealed under this section is to be submitted with oral argument, the oral argument shall be held in chambers or, on motion of the minor through her counsel or through the member of the clergy who filed the appeal under this section, if any, or on the court of appeals' own motion, by telephone, unless the minor through her counsel or the member of the clergy demands that the oral argument be held in open court.
809.105(9)
(9) Costs. The court of appeals may not assess costs against a minor or member of the clergy in an appeal under this section.
809.105(10)(a)(a) A judgment by the court of appeals under this section is effective immediately, without transmittal to the trial court, as an order either granting or denying the petition. If the court of appeals reverses a trial court order denying a petition under
s. 48.375 (7), the court of appeals shall immediately so notify the minor by personal service on her counsel or the member of the clergy who initiated the appeal under this section, if any, of a certified copy of the order of the court of appeals granting the minor's petition. If the court of appeals affirms the trial court order, it shall immediately so notify the minor by personal service on her counsel or the member of the clergy who initiated the appeal under this section, if any, of a copy of the order of the court of appeals denying the petition and shall also notify the minor by her counsel or the member of the clergy who initiated the appeal under this section on behalf of the minor, if any, that she may, under
sub. (11), file a petition for review with the supreme court under
s. 809.62. The court of appeals shall pay the expenses of service of notice under this subsection. The clerk of the court of appeals shall transmit to the trial court the judgment and opinion of the court of appeals and the record in the case filed under
sub. (4), within 31 days after the date that the judgment and opinion of the court of appeals are filed. If a petition for review is filed under
sub. (11), the transmittal shall be made within 31 days after the date that the supreme court rules on the petition for review.
809.105(10)(b)
(b) Counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall immediately, upon notification under
par. (a) that the court of appeals has granted or denied the petition, notify the minor. If the court of appeals has granted the petition, counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order of the court of appeals to the person who intends to perform or induce the abortion. If with reasonable diligence the person who intends to perform or induce the abortion cannot be located for delivery, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall leave a certified copy of the order with the person's agent at the person's principal place of business. If a clinic or medical facility is specified in the petition as the corporation, partnership or other unincorporated association that employs the person who intends to perform or induce the abortion, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order to an agent of the corporation, partnership or other unincorporated association at its principal place of business. There may be no service by mail or publication. The person or agent who receives the certified copy of the order under this paragraph shall place the copy in the minor's medical record.
809.105(11)(a)(a) Only a minor or the member of the clergy who initiated the appeal under this section, if any, may initiate a review of an appeal under this section. The petition for review of an appeal in the supreme court shall contain:
809.105(11)(a)1.
1. A statement of the issues presented for review and how the issues were decided by the trial court and court of appeals.
809.105(11)(a)2.
2. A brief statement explaining the reason for appeal to the supreme court.
809.105(11)(a)3.
3. The judgment and opinion of the court of appeals, and the findings of fact, conclusions of law and final order of the trial court that were furnished to the court of appeals. The court of appeals shall provide a copy of these papers to the minor, if any, the member of the clergy who initiated the appeal under this section, if any, her counsel or her guardian ad litem, if any, immediately upon request.
809.105(11)(a)4.
4. A copy of any other document submitted to the court of appeals under
sub. (4).
809.105(11)(b)
(b) The supreme court shall decide whether or not to grant the petition for review and shall decide the issue on review within the time specified in
par. (c).
809.105(11)(c)
(c) The supreme court shall, by court rule, provide for expedited appellate review of cases appealed under this subsection because time may be of the essence regarding the performance of the abortion.
809.105(11)(cm)
(cm) If the supreme court determines that a case reviewed under this subsection is to be submitted with oral argument, the oral argument shall be held in chambers or, on motion of the minor through her counsel or through the member of the clergy who initiated the appeal under this section, if any, or on the supreme court's own motion, by telephone, unless the minor through her counsel or the member of the clergy demands that the oral argument be held in open court.
809.105(11)(d)
(d) A judgment or decision by the supreme court under this section is effective immediately, without transmittal to the trial court, as an order either granting or denying the petition. If the supreme court reverses a court of appeals order affirming a trial court order denying a petition under
s. 48.375 (7), the supreme court shall immediately so notify the minor by personal service on her counsel, if any, or on the member of the clergy who initiated the appeal under this section, if any, of a certified copy of the order of the supreme court granting the minor's petition. If the supreme court affirms the order of the court of appeals, it shall immediately so notify the minor by her counsel or by the member of the clergy who initiated the appeal under this section, if any. The clerk of the supreme court shall transmit to the trial court the judgment, or decision, and opinion of the supreme court and the complete record in the case within 31 days after the date that the judgment, or decision, and opinion of the supreme court are filed. The supreme court shall pay the expense of service of notice under this subsection.
809.105(11)(e)
(e) Counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall immediately, upon notification under
par. (d) that the supreme court has granted or denied the petition, notify the minor. If the supreme court has granted the petition, counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order of the supreme court to the person who intends to perform or induce the abortion. If with reasonable diligence the person who intends to perform or induce the abortion cannot be located for delivery, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall leave a certified copy of the order with the person's agent at the person's principal place of business. If a clinic or medical facility is specified in the petition as the corporation, partnership or other unincorporated association that employs the person who intends to perform or induce the abortion, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order to an agent of the corporation, partnership or other unincorporated association at its principal place of business. There may be no service by mail or publication. The person or agent who receives the certified copy of the order under this paragraph shall place the order in the minor's medical record.
809.105(12)
(12) Confidentiality and anonymity. All proceedings in the court of appeals and the supreme court that are brought under this section shall be conducted in a confidential manner, and the minor may use the name "Jane Doe" instead of her name on all papers filed with either court. The identity of the minor involved and all records and other papers pertaining to an appeal shall be kept confidential, except as provided in
s. 48.375 (7) (e).
809.105(13)
(13) Certain persons barred from proceedings. No parent, or guardian or legal custodian, if one has been appointed, or foster parent or treatment foster parent, if the minor has been placed in a foster home or treatment foster home, and the minor's parent has signed a waiver granting the department of health and family services, a county department under
s. 46.215,
46.22 or
46.23, the foster parent or the treatment foster parent the authority to consent to medical services or treatment on behalf of the minor, or adult family member, as defined in
s. 48.375 (2) (b), of any minor who has initiated an appeal under this section may attend or intervene in any proceeding under this section.
809.107
809.107
Appeals in proceedings related to termination of parental rights. 809.107(1)(1)
Applicability. This section applies to the appeal of an order or judgment under
s. 48.43 and supersedes all inconsistent provisions of this chapter.
809.107(2)
(2) Initiating the appeal. A person shall initiate an appeal under this section by filing, within the time specified in
s. 808.04 (7m), a notice of intent to appeal with the clerk of the trial court in which the judgment or order appealed from was entered. Also within that time period, the person shall serve a copy of the notice on the person representing the interests of the public, opposing counsel, the guardian ad litem appointed under
s. 48.235 (1) (c) for the child who is the subject of the proceeding, the child's parent and any guardian and any custodian appointed under
s. 48.427 (3) or
48.428 (2). The notice shall include the following:
809.107(2)(b)
(b) An identification of the judgment or order from which the person filing the notice intends to appeal and the date on which it was granted or entered.
809.107(2)(c)
(c) The name and address of the person filing the notice of intent to appeal and the person's trial counsel.
809.107(2)(d)
(d) For a person other than the state, whether the trial counsel for the person filing the notice of intent to appeal was appointed by the state public defender and, if so, whether the person's financial circumstances have materially improved since the date on which the person's indigency was determined.
809.107(2)(e)
(e) For a person other than the state, whether the person filing the notice of intent to appeal will represent himself or herself or will be represented by retained counsel or requests the state public defender to appoint counsel for the appeal. If the person has retained counsel, the counsel's name and address shall be included.
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 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).
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 where 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).
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).
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).
