809.19 Annotation
Sub. (5). Each appellant in a case has the right to file a separate brief and need not share a brief with co-appellants.
809.19 Annotation
Sub. (6). The parties to a cross-appeal can file the same briefs as the parties to the main appeal. Thus the cross-appellant can file a 40 page brief as cross-appellant in addition to his 40 page brief as respondent. The cross-appellant can also combine both briefs in a single brief but is limited to the page limits on each section of brief. A cross-appellant filing a 30 page brief as respondent is still limited to a 40 page brief as cross-appellant.
809.19 Annotation
Sub. (7). The practice under former Rule 251.40 is modified to require the request to file an amicus curiae brief be made by motion rather than by letter. Rule 29, FRAP. The motion should indicate the interest of the amicus and why a brief by the amicus is desirable.
809.19 Annotation
Subs. (8) and (9). In addition to briefs produced by the standard typographical process, briefs produced by a mimeograph or photocopy process from typewritten copy may also be filed. The principal objective is to reduce the cost of an appeal to the Court of Appeals. The specifications for the printed and typewritten pages are designed to result in briefs of approximately an equal number of words no matter which process is used. The paper size of 8-1/2 x 11 is specified for the sake of uniformity and ease of handling.
809.19 Annotation
Colors for covers are specified to permit easy identification of the briefs. [Re Order effective July 1, 1978]
809.19 Note
Judicial Council Committee's Note, 1979: Sub. (8) (a) previously required that 30 copies of a brief or appendix be filed in either the Court of Appeals or Supreme Court. The number of copies to be filed in the Court of Appeals or Supreme Court has been reduced to 20 copies to reflect the smaller number of judges deciding an appeal before the Court of Appeals and the difficulty the Supreme Court is facing in having enough storage space to retain the 30 copies of a brief previously required. The provision in Rule 809.43 requiring the filing of 10 copies of a brief and appendix in an appeal heard by one judge remains unchanged. [Re Order effective Jan. 1, 1980]
809.19 Note
Judicial Council Committee's Note, 1981: Sub. (1) (e) is amended to incorporate
SCR 80.02, governing citation of a published court of appeals or supreme court opinion in a brief, memorandum or other document filed with the court of appeals or supreme court.
809.19 Annotation
Sub. (8) (b) 4 previously required that a brief and appendix be bound only on the left side with staple or tape. A sufficient number of heavy strength staples are to be used to assure that the briefs and appendix remain securely bound when used by the court of appeals and supreme court. The prior alternative method of binding the brief and appendix solely with tape is repealed.
809.19 Annotation
Sub. (9) is amended to clarify that both a front and back cover of a brief and appendix are required. [Re Order effective Jan. 1, 1982]
809.19 Note
Judicial Council Note, 1988: Sub. (7) (b) permits nonparties to request permission to file a brief supporting or opposing a petition for the Supreme Court to review a decision of the Court of Appeals or to take original jurisdiction. In these cases, the motion and the brief shall be filed together, within the time permitted for response by the opposing party.
809.19 Annotation
Revised sub. (8) (c) clarifies that the page limit does not include the table of contents, table of cases and other authorities, statement of issues, statement on oral argument and publication, appendix or supplemental appendix. [Re Order effective Jan. 1, 1989]
809.19 Annotation
The page length limits in sub. (8) apply in original jurisdiction actions. Watts v. Thompson,
116 F.3d 220 (1997).
809.20
809.20
Rule (Assignment and advancement of cases). The court may take cases under submission in such order and upon such notice as it determines. A party may file a motion to advance the submission of a case either before or after the briefs have been filed. The motion should recite the nature of the public or private interest involved, the issues in the case and how delay in submission will be prejudicial to the accomplishment of justice.
809.20 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
809.20 Note
Judicial Council Committee's Note, 1978: This rule incorporates the present unwritten procedure for having the submission of a case advanced. It also specifies the factors that may affect the advancement of a case. [Re Order effective July 1, 1978]
809.21
809.21
Rule (Summary disposition). 809.21(1)
(1) The court upon its own motion or upon the motion of a party may dispose of an appeal summarily.
809.21(2)
(2) A party may file at any time a motion for summary disposition of an appeal.
Section 809.14 governs the procedure on the motion.
809.21 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252.
809.21 Note
Judicial Council Committee's Note, 1978: The basic concept in former Rule 251.54 of allowing the Supreme Court to dispose of appeals summarily is continued, but Rule 809.21 specifically authorizes a motion for this purpose. Such a motion was often used under prior procedure, but the rules did not expressly authorize it. [Re Order effective July 1, 1978]
809.22
809.22
Rule (Oral argument). 809.22(1)
(1) The court shall determine whether a case is to be submitted with oral argument or on briefs only.
809.22(2)
(2) The court may direct that an appeal be submitted on briefs only if:
809.22(2)(a)1.
1. Are plainly contrary to relevant legal authority that appear to be sound and are not significantly challenged;
809.22(2)(a)2.
2. Are on their face without merit and for which no supporting authority is cited or discovered; or
809.22(2)(a)3.
3. Involve solely questions of fact and the fact findings are clearly supported by sufficient evidence; or
809.22(2)(b)
(b) The briefs fully present and meet the issues on appeal and fully develop the theories and legal authorities on each side so that oral argument would be of such marginal value that it does not justify the additional expenditure of court time or cost to the litigant.
809.22(3)
(3) The court shall determine the amount of time for oral argument allowed to each party in a case either by general or special order.
809.22(4)
(4) On motion of any party or its own motion, the court may order that oral argument be heard by telephone.
809.22 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 141 Wis. 2d xiii (1987).
809.22 Note
Judicial Council Committee's Note, 1978: The Supreme Court has for a number of years scheduled some cases for submission on briefs only without oral argument in an effort to accommodate its burgeoning caseload. The criteria by which the court decides whether a case is to have oral argument have never been formally adopted. This rule is a statement of those criteria. Counsel should address these criteria in their briefs in discussing the question of the need for oral argument. See Rule 809.19 (1) (c). Flexibility is provided by sub. (3) as to the length of oral argument in order to meet the needs of an individual case. It may be appropriate, for example, to have an oral argument for the sole purpose of allowing the court to ask questions of counsel. [Re Order effective July 1, 1978]
809.22 Note
Judicial Council Note, 1988: Sub. (4) [created] authorizes oral arguments to be heard by telephone conference on motion of any party or the court of appeals. [Re Order effective Jan. 1, 1988]
809.23
809.23
Rule (Publication of opinions). 809.23(1)(a)(a) While neither controlling nor fully measuring the court's discretion, criteria for publication in the official reports of an opinion of the court include whether the opinion:
809.23(1)(a)1.
1. Enunciates a new rule of law or modifies, clarifies or criticizes an existing rule;
809.23(1)(a)2.
2. Applies an established rule of law to a factual situation significantly different from that in published opinions;
809.23(1)(a)3.
3. Resolves or identifies a conflict between prior decisions;
809.23(1)(a)4.
4. Contributes to the legal literature by collecting case law or reciting legislative history; or
809.23(1)(a)5.
5. Decides a case of substantial and continuing public interest.
809.23(1)(b)1.
1. The issues involve no more than the application of well-settled rules of law to a recurring fact situation;
809.23(1)(b)2.
2. The issue asserted is whether the evidence is sufficient to support the judgment and the briefs show the evidence is sufficient;
809.23(1)(b)3.
3. The issues are decided on the basis of controlling precedent and no reason appears for questioning or qualifying the precedent;
809.23(1)(b)5.
5. It is a per curiam opinion on issues other than appellate jurisdiction or procedure;
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)(a)(a) Except as provided in
par. (b), any person may at any time file a request that an opinion not recommended for publication or an unreported opinion be published in the official reports.
809.23(4)(b)
(b) No request may be made for the publication of an opinion that is a decision by one court of appeals judge under
s. 752.31(2) and
(3) or that is a per curiam opinion on issues other than appellate jurisdiction or procedure.
809.23(4)(c)
(c) A person may request that a per curiam opinion that does not address issues of appellate jurisdiction or procedure be withdrawn, authored and recommended for publication. That request shall be filed within 20 days of the date of the opinion and shall be decided by the panel that decided the appeal.
809.23(4)(d)
(d) A copy of any request made under this subsection shall be served under
s. 809.80 on the parties to the appeal or other proceeding in which the opinion was filed. A party to the appeal or proceeding may file a response to the request within 5 days after the request is filed.
809.23 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii;
1981 c. 390 s.
252; Sup. Ct. Order, 109 Wis. 2d xiii (1982); Sup. Ct. Order, 118 Wis. 2d xiii (1984);
1991 a. 189, Sup. Ct. Order 96-10, 208 Wis. 2d xiii (1997).
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 Note
Court of Appeals Note, 1997: A request under this paragraph [sub. (4) (c)] does not affect the time under sec. (Rule) 809.62 for filing a petition for review. As in the case of reconsideration of a Court of Appeals decision or opinion, withdrawal of an opinion renders that opinion a nullity. Accordingly, a petition for review of that opinion filed prior to its withdrawal is of no effect, except that the petitioner may incorporate it by reference in a petition for review of the opinion subsequently issued in the appeal or proceeding.
809.23 Note
Court of Appeals Note, 1997: The Court of Appeals recognizes that many of its opinions are issued as per curiam opinions that should not be published under sec. (Rule) 809.23(1)(b)5, Stats. This amendment [of sub. (4)] establishes a procedure whereby a person may request that a per curiam opinion be withdrawn, authored and recommended for publication. The amendment also expressly states that an opinion issued by a single judge of the Court of Appeals under sec. 752.31(2) and (3), Stats., will not be published.
809.23 Annotation
An attorney was fined $50 for citing an unpublished opinion of the Court of Appeals. Tamminen v. Aetna Casualty & Surety Co.
109 Wis. 2d 536,
327 N.W.2d 55 (1982).
809.23 Annotation
Citation to an unpublished Court of Appeals decision to show a conflict between districts for purposes of s. 809.62 (1) (d) is appropriate. State v. Higginbotham,
162 Wis. 2d 978,
471 N.W.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 Wis. 2d 453,
510 N.W.2d 826 (Ct. App. 1993).
809.23 Annotation
Only the Supreme Court has the power to overrule, modify or withdraw language from a published opinion of the Court of Appeals. Cook v. Cook,
208 Wis. 2d 166,
560 N.W.2d 246 (1997).
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 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 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 7 days of the service of the statement, a motion objecting to the statement of costs.
