809.42 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979).
809.42 Note
Judicial Council Committee's Note, 1979: This rule is amended to delete language authorizing an appellant and respondent to waive the filing of briefs in an appeal to the Court of Appeals. The Court of Appeals as a consistent policy does not allow the waiving of filing of briefs. The rule is brought into conformity with that policy. [Re Order effective Jan. 1, 1980]
809.43
809.43
Rule (Number of briefs). 809.43(1)
(1) A person shall file 10 copies of a brief and appendix in the court of appeals, or the number that the court directs, and shall serve 3 copies on each party. If the opposing party is not represented by counsel, only one copy need be served on that party.
809.43(2)
(2) A person who is found indigent under
s. 814.29 and who is not represented by counsel shall file 3 copies of a brief and appendix in the court of appeals and shall serve one copy on each party. A prisoner who has been granted leave to proceed without prepayment of fees under
s. 814.29 (1m) and who is not represented by counsel shall file 3 copies of a brief or appendix in the court of appeals and shall serve one copy on each party.
809.43 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 164 Wis. 2d xxix (1991); Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii.
809.43 Note
Judicial Council Note, 2001: Subsection (1) was revised to simplify statutory language. The last sentence in sub. (1) reduces the number of copies required for a pro se party. Subsection (2) was revised to simplify the language and to specify that this section applies only to pro se parties. [Re Order No. 00-02 effective July 1, 2001]
DISCRETIONARY JURISDICTION PROCEDURE IN COURT OF APPEALS
809.50
809.50
Rule (Appeal from judgment or order not appealable as of right). 809.50(1)
(1) A person shall seek leave of the court to appeal a judgment or order not appealable as of right under
s. 808.03 (1) by filing within 14 days after the entry of the judgment or order a petition and supporting memorandum, if any. The petition and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. The petition shall contain:
809.50(1)(a)
(a) A statement of the issues presented by the controversy;
809.50(1)(b)
(b) A statement of the facts necessary to an understanding of the issues;
809.50(1)(c)
(c) A statement showing that review of the judgment or order immediately rather than on an appeal from the final judgment in the case or proceeding will materially advance the termination of the litigation or clarify further proceedings therein, protect a party from substantial or irreparable injury, or clarify an issue of general importance in the administration of justice; and
809.50(1)(d)
(d) A copy of the judgment or order sought to be reviewed.
809.50(2)
(2) An opposing party in circuit court shall file a response with supporting memorandum, if any, within 14 days after the service of the petition. The response and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. Costs and fees may be awarded against any party in a petition for leave to appeal proceeding.
809.50(3)
(3) If the court grants leave to appeal, the procedures for appeals from final judgments are applicable to further proceedings in the appeal. The entry of the order granting leave to appeal has the effect of the filing of a notice of appeal. The court may specify the issue or issues that it will review in the appeal. If the court grants leave to appeal, the petitioner shall file a docketing statement if required by
s. 809.10 (1) (d), identifying the issues to be reviewed in the appeal. The docketing statement shall be filed within 11 days after the date of the order granting the petition for leave to appeal.
809.50(4)
(4) A person filing a petition under this section shall append to the petition a statement identifying whether the petition is produced with a monospaced font or with a proportional serif font. If produced with a proportional serif font, the person shall set forth the word count of the petition.
809.50 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 151 Wis. 2d xvii (1989); Sup. Ct. Order, 164 Wis. 2d xxix (1991); Sup. Ct. Order, 171 Wis. 2d xxxv (1992); Sup. Ct. Order No.
93-20, 179 Wis. 2d xxv; 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.
809.50 Note
Judicial Council Committee's Note, 1978: Section 808.03 (1) makes only final judgments and final orders appealable as of right. All other judgments and orders are appealable only in the discretion of the court. This section provides the procedure for asking the court to permit the appeal of a nonfinal order. The issue of whether the court should hear the appeal is presented to the court by petition with both parties given the opportunity of submitting memoranda on the question. The standards on which nonfinal judgments or orders should be reviewed immediately are set forth in s. 808.03 (2) and are taken from the American Bar Association's Standards of Judicial Administration, Standards Relating to Appellate Courts, s. 3.12 (b). [Re Order effective July 1, 1978]
809.50 Note
Judicial Council Committee's Note, 1979: Sub. (1) (c) is amended to conform with 808.03 (2) (b), which sets out the standards created by the Wisconsin Legislature for appeals to the Court of Appeals by permission. A drafting error in the original preparation of chapter 809 replaced the word "or" found in 808.03 (2) (b) with the word "and", which results in a party having to show in a petition to the Court of Appeals for the court to assume discretionary jurisdiction that granting such a petition will protect a party from both substantial "and" irreparable injury rather than meeting just one of the 2 criteria, as was the intention of the Wisconsin Legislature. [Re Order effective Jan. 1, 1980]
809.50 Note
Judicial Council Note, 2001: The time limits in subs. (1) and (2) were changed from 10 to 14 days. Please see the comment to s. 808.07. Subsection (3) specifies that the court may grant discretionary review on specified issues. This rule codifies Fedders v. American Family Mut. Ins. Co.,
230 Wis. 2d 577,
601 N.W.2d 861 (Ct. App. 1999), which held a grant of leave to appeal from a nonfinal order or judgment does not authorize cross-appeals as of right from the same or from another nonfinal order or judgment; cross-appeals require a separate petition for leave to appeal. [Re Order No. 00-02 effective July 1, 2001]
809.50 Note
Judicial Council Note, 2002: Subsection (3) is amended to clarify the docketing statement requirements following the grant of a petition for leave to appeal a non-final order. [Re Order No. 02-01 effective January 1, 2003]
809.50 Annotation
Once leave to appeal is granted, a cross-appeal from the same interlocutory order or judgment in the action requires a petition for leave to appeal. Fedders v. American Family Mutual Insurance Co.
230 Wis. 2d 577,
601 N.W.2d 861 (Ct. App. 1999).
809.50 Annotation
Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner & Levenson. Wis. Law. July 1993.
809.51
809.51
Rule (Supervisory writ and original jurisdiction to issue prerogative writ). 809.51(1)
(1) A person may request the court to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and the presiding judge, or other person or body, by filing a petition and supporting memorandum. The petition and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. The petitioner shall name as respondents the court and judge, or other person or body, and all other parties in the action or proceeding. The petition shall contain:
809.51(1)(a)
(a) A statement of the issues presented by the controversy;
809.51(1)(b)
(b) A statement of the facts necessary to an understanding of the issues;
809.51(1)(d)
(d) The reasons why the court should take jurisdiction.
809.51(2)
(2) The court may deny the petition ex parte or may order the respondents to file a response with a supporting memorandum, if any, and may order oral argument on the merits of the petition. The response and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. The respondents shall respond with supporting memorandum within 14 days after service of the order. A respondent may file a letter stating that he or she does not intend to file a response, but the petition is not thereby admitted.
809.51(3)
(3) The court, upon a consideration of the petition, responses, supporting memoranda and argument, may grant or deny the petition or order such additional proceedings as it considers appropriate. Costs and fees may be awarded against any party in a writ proceeding.
809.51(4)
(4) A person filing a petition under this section shall append to the petition a statement identifying whether the petition is produced with a monospaced font or with a proportional serif font. If produced with a proportional serif font, the person shall set forth the word count of the petition.
809.51 History
History: Sup. Ct. Order, 83 Wis. 2d xiii; Sup. Ct. Order, 104 Wis. 2d xi (1978); Sup. Ct. Order, 151 Wis. 2d xix (1981); Sup. Ct. Order, 164 Wis. 2d xxix (1991); Sup. Ct. Order, 171 Wis. 2d xxxv (1992); Sup. Ct. Order No.
93-20, 179 Wis. 2d xxv; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii.
809.51 Note
Judicial Council Committee's Note, 1981: Sub. (1) is amended to reflect the procedure for issuance of a prerogative writ currently followed by the court of appeals and to alert attorneys to the correct procedure to be followed. Rule 809.51 governs the procedures for seeking a petition for supervisory writ or original jurisdiction prerogative writ in the court of appeals. [Re Order effective Jan. 1, 1982]
809.51 Note
Judicial Council Note, 2001: The time limit in sub. (2) was changed from 10 to 14 days. See the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001]
809.51 Annotation
The court of appeals abused its discretion by ordering oral argument one day after the petition for a writ was filed and served. State ex rel. Breier v. Milwaukee County Circuit Court,
91 Wis. 2d 833,
284 N.W.2d 102 (1979).
809.51 Annotation
The court of appeals does not have jurisdiction to entertain original actions unrelated to its supervisory or appellate authority over circuit courts. State ex rel. Swan v. Elections Board,
133 Wis. 2d 87,
394 N.W.2d 732 (1986).
809.52
809.52
Rule (Temporary relief). A petitioner may request in a petition filed under
s. 809.50 or
809.51 that the court grant temporary relief pending disposition of the petition. The court or a judge of the court may grant temporary relief upon the terms and conditions it considers appropriate.
809.52 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252.
809.52 Note
Judicial Council Committee's Note, 1978: Rules 809.51 to 809.52 incorporate into the rules for the first time the procedures to be followed when the court is asked to exercise its supervisory jurisdiction. For an excellent discussion of original and supervisory jurisdiction of the Supreme Court and the distinction between them see the opinion by Justice Wickhem in Petition of Heil, 230 Wis. 428, 284 N.W. 42 (1939). To a large degree the procedures specified in 201 Wis. 123, 229 N.W. 643 (1930) are followed, but some of the features of Rule 21, FRAP, are included.
809.52 Annotation
There are a number of changes, however, from prior procedures. The parties in the action or proceeding in the trial court must be made respondents in the Court of Appeals because they in most cases are the real parties in interest. Usually the judge whose order is being challenged has no direct interest in the outcome and should not be forced to appear but may, of course, do so. The Attorney General must also be served in certain cases such as declaratory judgments involving the constitutionality of a statute or arising under Chapter 227, the administrative procedure act.
809.52 Annotation
The petition must be filed with the clerk rather than being submitted ex parte to a judge of the court. By virtue of the requirement that the petition be filed, it must previously have been served on opposing parties as required by s. 809.80. The initial action of the court will be to direct the respondents to answer the petition rather than to issue an order to show cause why the relief requested should not be granted. [Re Order effective July 1, 1978]
APPELLATE PROCEDURE IN SUPREME COURT
809.60
809.60
Rule (Petition to bypass). 809.60(1)
(1) A party may file with the supreme court a petition to bypass the court of appeals pursuant to
s. 808.05 no later than 14 days following the filing of the respondent's brief under
s. 809.19 or response. The petition must include a statement of reasons for bypassing the court of appeals.
809.60(2)
(2) An opposing party may file a response to the petition within 14 days after the service of the petition.
809.60(3)
(3) The filing of the petition stays the court of appeals from taking under submission the appeal or other proceeding.
809.60(4)
(4) The supreme court may grant the petition upon such conditions as it considers appropriate.
809.60(5)
(5) Upon the denial of the petition by the supreme court the appeal or other proceeding in the court of appeals continues as though the petition had never been filed.
809.60 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii.
809.60 Note
Judicial Council Committee's Note, 1981: The amendment to sub. (1) establishes time periods for filing a bypass petition to discourage use of the petition for dilatory purposes. [Re Order effective Jan. 1, 1982]
809.60 Note
Judicial Council Note, 2001: The time limits in subs. (1) and (2) have been changed from 10 to 14 days. Please see the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001]
809.61
809.61
Rule (Bypass by certification of court of appeals or upon motion of supreme court). The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion. The supreme court may refuse to take jurisdiction of an appeal or other proceeding certified to it by the court of appeals.
809.61 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
809.61 Annotation
The supreme court's denial of certification has no precedential value on the merits of case. State v. Shillcutt,
119 Wis. 2d 788,
350 N.W.2d 686 (1984).
809.61 Annotation
When confronted with a direct conflict between a decision of the state supreme court and a later decision of the U. S. Supreme Court on a matter of federal law, the court of appeals may certify the case to the state supreme court under s. 809.61. If it does not, or certification is not accepted, the supremacy clause of the U. S. Constitution compels adherence to U. S. Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of state supreme court. State v. Jennings, 2002 WI 44,
252 Wis. 2d 228,
647 N.W.2d 142.
809.61 Annotation
Discretionary review by the Wisconsin supreme court. Pokrass, WBB March, 1985.
809.62
809.62
Rule (Petition for review). 809.62(1)
(1) A party may file with the supreme court a petition for review of an adverse decision of the court of appeals pursuant to
s. 808.10 within 30 days of the date of the decision of the court of appeals. Supreme court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. The following, while neither controlling nor fully measuring the court's discretion, indicate criteria that will be considered:
809.62(1)(a)
(a) A real and significant question of federal or state constitutional law is presented.
809.62(1)(b)
(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.
809.62(1)(c)
(c) A decision by the supreme court will help develop, clarify or harmonize the law, and
809.62(1)(c)1.
1. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or
809.62(1)(c)2.
2. The question presented is a novel one, the resolution of which will have statewide impact; or
809.62(1)(c)3.
3. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.
809.62(1)(d)
(d) The court of appeals' decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals' decisions.
809.62(1)(e)
(e) The court of appeals' decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.
809.62(2)(a)
(a) A statement of the issues presented for review, the method or manner of raising the issues in the court of appeals and how the court of appeals decided the issues.
809.62(2)(c)
(c) A concise statement of the criteria of
sub. (1) relied upon to support the petition, or in the absence of any of the criteria, a concise statement of other substantial and compelling reasons for review.
809.62(2)(d)
(d) A statement of the case containing a description of the nature of the case; the procedural status of the case leading up to the review; the dispositions in the trial court and court of appeals; and a statement of those facts not included in the opinion of the court of appeals relevant to the issues presented for review, with appropriate references to the record.
809.62(2)(e)
(e) An argument amplifying the reasons relied on to support the petition, arranged in the order of the statement of issues presented. All contentions in support of the petition must be set forth in the petition. A memorandum in support of the petition is not permitted.
809.62(2)(f)
(f) An appendix containing, in the following order:
809.62(2)(f)2.
2. Judgment, orders, findings of fact, conclusions of law and memorandum decisions of the circuit court and administrative agencies necessary for an understanding of the petition.
809.62(2)(f)3.
3. Any other portions of the record necessary for an understanding of the petition.
809.62(2m)
(2m) Subsection (2) does not apply to a petition for review of an appeal that is governed by
s. 809.105. A petition governed by that section shall comply with
s. 809.105 (11).
809.62(3)
(3) Except as provided in
s. 809.32 (4), an opposing party may file a response to the petition within 14 days after the service of the petition.
809.62(4)
(4) The petition for review and response, if any, shall conform to
s. 809.19 (8) (b) and
(d) as to form and certification, shall be as short as possible, and may not exceed 35 pages in length if a monospaced font is used or 8,000 words if a proportional serif font is used, exclusive of appendix. The petition for review and the response shall have white front and back covers, and a party shall file 10 copies with the clerk of the supreme court.
809.62(5)
(5) Except as provided in
s. 809.24, the filing of the petition stays further proceedings in the court of appeals.
809.62(6)
(6) The supreme court may grant the petition upon such conditions as it considers appropriate, including the filing of additional briefs. If the petition is granted, the petitioner cannot raise or argue issues not set forth in the petition unless ordered otherwise by the supreme court. The supreme court may limit the issues to be considered on review.
809.62(7)
(7) A party who seeks a modification of an adverse decision of the court of appeals may file a petition for cross-review within the period for filing a petition for review with the supreme court, or 30 days after the filing of a petition for review by another party, whichever is later. A party seeking cross-review has the same rights and obligations as a party seeking review under
ch. 809.
809.62 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);
1991 a. 263; Sup. Ct. Order No.
93-20, 179 Wis. 2d xxv;
1993 a. 395; 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.
809.62 Note
Judicial Council Committee's Note, 1979: The caption of Rule 809.62 is amended to more properly describe the function of the Supreme Court in reviewing decisions of the Court of Appeals.
