809.10 Note
Judicial Council Committee's Note, 1978: Sub. (1) (a) establishes the same procedure for initiating a review by the Court of Appeals whether it be the statutory appeal or constitutional writ of error. Both are begun by filing a notice of appeal in the trial court. The prior procedure under which a person could obtain a writ of error from the Supreme Court and then file it in the trial court at his leisure is eliminated. It is important to recognize that the right to seek review by writ of error as established by the Constitution is not abolished, but the procedure for seeking that review is made uniform with that for filing an appeal.
809.10 Annotation
The second sentence of sub. (1) (b) is designed to change the law as declared in former s. 817.11 (4), and the decisions of the Supreme Court interpreting former s. 269.59 (1), under which the Supreme Court was vested with subject matter jurisdiction when an appealable order was entered. Under former s. 817.11 (4), the notice of appeal was necessary only to confer personal jurisdiction which could have been waived. The court often had to decide whether the respondent by some conduct, such as signing a stipulation or receiving a brief, had waived any objection to personal jurisdiction. The result was that a judgment of a trial court in Wisconsin was never completely final because even after the expiration of the time for an appeal a party could still appeal, and if the respondent failed to object or take some step that could be considered as participating in the appeal prior to objecting, the Supreme Court was able to review the judgment. This section conforms Wisconsin practice to that in the federal system and most other states.
809.10 Annotation
Sub. (2) (a) provides that appellants whose interests are substantially identical may proceed jointly or separately. See Rule 3 (b), Federal Rules of Appellate Procedure (FRAP). If they do not wish to proceed jointly, or their interests are not the same, or if they are challenging from the same judgment or order, the subsequent appeal should be docketed with the first appeal, but the second person appealing has the same procedural rights, such as filing of briefs, as the first appellant. The respondent has separate briefing rights as to each appellant and co-appellant filing a separate brief. It is anticipated under this section that all appeals arising out of the same case filed within the same appeal period will be considered in a single appeal and not be treated as separate cases in the Court of Appeals.
809.10 Annotation
Sub. (2) (b). The respondent who desires to challenge a judgment or order must file a notice of cross-appeal. Notices of review are abolished. Under former s. 817.12, it was very difficult to ascertain when a notice of review or cross-appeal was appropriate. Requiring a notice of cross-appeal in each instance eliminates this confusion. The respondent is given a minimum of 30 days after the filing of the notice of appeal to determine whether to file a cross-appeal. As was the case under former s. 817.12, a respondent loses the right to cross-appeal if the cross-appeal is not filed within the specified time.
809.10 Annotation
Sub. (3). Appeals from judgments or orders in separate cases in the trial court are docketed as separate appeals in the Court of Appeals. If appropriate, these cases can be consolidated after docketing by order of the Court of Appeals. Rule 3 (b), FRAP.
809.10 Annotation
Sub. (4). The provision of former s. 817.34 that an appeal from a final judgment brings before the court for review all of the prior orders entered in the case is continued. This does not apply, however, to any prior final order or judgment which could have been appealed as of right under s. 808.03 (1). Thus a judgment dismissing a codefendant from a case must be appealed immediately and cannot be reviewed when judgment is rendered on the plaintiff's claim against the other defendants. Nonfinal orders and judgments that are appealed and ruled upon by the Court of Appeals are, of course, not subject to further review upon appeal of the final judgment. This section is also limited to those orders made in favor of the named respondents to prevent the possibility of the court reviewing an order in favor of a person not a party to the appeal.
809.10 Annotation
A change is made in prior law in that an interlocutory judgment, Rule 806.01 (2), which previously must have been appealed within the statutory period from the entry of the interlocutory judgment, Richter v. Standard Manufacturing Co., 224 Wis. 121, 271 N.W. 14 (1937), is now reviewable by the Court of Appeals upon an appeal of the final judgment. The objective is to have only one appeal in each case, absent unusual circumstances which would justify an appeal from a nonfinal order under s. 808.03 (2). [Re Order effective July 1, 1978]
809.10 Note
Judicial Council Committee's Note, 1981: To facilitate the efficient administration of appeals by the court of appeals, sub. (1) (a) is amended to require that the notice of appeal state whether the appeal is in one of the types of cases specified in s. 752.31 (2). [Re Order effective Jan. 1, 1982]
809.10 Note
Judicial Council Note, 2001: Former sub. (1) (a) has been repealed and recreated as subs. (1) (a) to (d). Subsection 1 (d) clarifies when a docketing statement must be filed. Former sub. (1) (b) has been repealed and recreated as sub. (1) (e). Subsection (1) (f) codifies existing law. See Northridge Bank v. Community Eye Care Ctr.,
94 Wis. 2d 201, 203,
287 N.W.2d 810, 811 (1980); Carrington v. St. Paul Fire & Marine Ins. Co.,
169 Wis. 2d 211, 217 n.2,
485 N.W.2d 267, 269 n.2 (1992). Please see s. 809.32 for special requirements for a Notice of Appeal in a No-Merit Report appeal. [Re Order No. 00-02 effective July 1, 2001]
809.10 Note
Judicial Council Note, 2002: See also related changes in ss. 809.40 (3) and 809.50 (3). Prior to 2001 WI 39, effective 7/1/01, s. 809.10 (1) provided that docketing statements were not required in "criminal cases or in cases in which a party appears pro se." State's appeals in criminal cases were inadvertently omitted from the list of statutory references that replaced "criminal cases" in the prior statute. Subsection (1) (d) is amended to clarify that docketing statements are not required in state's appeals in criminal cases. The amendment also clarifies that docketing statements are not required in permissive appeals in criminal cases, but are required in other permissive appeals. [Re Order No. 02-01 effective January 1, 2003]
809.10 Annotation
When an appeal is pending, matters not directly concerned with the appeal but related to the case are still properly within the trial court's jurisdiction. In Matter of Trust Estate of Schaefer,
91 Wis. 2d 360,
283 N.W.2d 410 (Ct. App. 1979).
809.10 Annotation
The filing date stamped on the notice of appeal is not conclusive as to the date of filing. Boston Old Colony Insurance Co. v. International Rectifier Corp.
91 Wis. 2d 813,
284 N.W.2d 93 (1979).
809.10 Annotation
A respondent was allowed to challenge a trial court order denying a motion for summary judgment despite the failure to file a notice of cross-appeal. Auric v. Continental Casualty Co.
111 Wis. 2d 507,
331 N.W.2d 325 (1983).
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
The 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 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),
95-1946.
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),
98-1076.
809.10 Annotation
The failure to sign a notice of appeal can be corrected and does not compel immediate dismissal. State v. Seay, 2002 WI App 37,
250 Wis. 2d 761,
641 N.W.2d 437,
00-3490.
809.10 Annotation
Section 753.016 (1) and (2) provide that in Milwaukee County each branch of the circuit court shall have a deputy clerk provided by the clerk of the circuit court. In Milwaukee County "the clerk of the trial court" under sub. (1) (a) necessarily encompasses the deputy clerk assigned to the specific branch of the circuit court as well as deputy clerks performing duties within the office of the clerk of circuit court. Kelley v. State, 2003 WI App 81,
261 Wis. 2d 803,
661 N.W.2d 854,
02-1495.
809.10 Annotation
Appeal of a judgment, the date of which was specified in the notice of appeal, included an appeal of an order for costs entered after that date. A judgment is perfected by the taxation of costs and the insertion of the amount into the judgment so that the order of costs becomes part of the judgment subject to appeal. DeWitt Ross & Stevens v. Galaxy Gaming and Racing, 2003 WI App 190,
267 Wis. 2d 233,
670 N.W.2d 74,
02-0359. Affirmed on other grounds, 2004 WI 92,
273 Wis. 2d 577,
682 N.W.2d 839,
02-0359.
809.10 Annotation
In order to confer jurisdiction on the court of appeals, a notice of appeal filed by counsel must contain the handwritten signature of an attorney authorized to practice law in Wisconsin. Counsel cannot delegate the duty to affix a signature on a notice of appeal to a person not authorized to practice law in Wisconsin. When a notice of appeal is not signed by an attorney when an attorney is required, the notice of appeal is fundamentally defective and cannot confer jurisdiction. Brown v. MR Group, LLC 2004 WI App 121,
274 Wis. 2d 804,
683 N.W.2d 804,
03-2309.
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; Sup. Ct. Order No.
03-06A, 2005 WI 86, 280 Wis. 2d xiii.
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 children and families, 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(1m)
(1m) Definition. In this section, "appellant" means a person who files a notice of intent to pursue postdisposition or appellate relief.
809.107(2)(am)(am)
Appeal procedure; counsel to continue. A person seeking postdisposition or appellate relief shall comply with this section. If the person desires to pursue postdisposition or appellate relief, counsel representing the person during circuit court proceedings under
s. 48.427 shall continue representation by filing a notice under
par. (bm), unless sooner discharged by the person or by the circuit court.
809.107(2)(bm)
(bm) Notice of intent to pursue postdisposition or appellate relief. A person shall initiate an appeal under this section by filing, within 30 days after the date of entry of the judgment or order appealed from, as specified in
s. 808.04 (7m), a notice of intent to pursue postdisposition or appellate relief with the clerk of the circuit court in which the judgment or order appealed from was entered. Also within that time period, the appellant shall serve a copy of the notice of intent 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). If the record discloses that final adjudication occurred after the notice of intent was filed, the notice shall be treated as filed after entry of the judgment or order appealed from on the day of the entry of the final judgment or order. The notice of intent shall include all of the following:
809.107(2)(bm)2.
2. An identification of the judgment or order from which the appellant intends to seek postdisposition or appellate relief and the date on which the judgment or order was entered.
809.107(2)(bm)3.
3. The name and address of the appellant and the appellant's trial counsel.
809.107(2)(bm)4.
4. For an appellant other than the state, whether the trial counsel for the appellant was appointed by the state public defender and, if so, whether the appellant's financial circumstances have materially improved since the date on which the appellant's indigency was determined.
809.107(2)(bm)4m.
4m. Whether the appellant requests representation by the state public defender for purposes of postdisposition or appellate relief.
809.107(2)(bm)5.
5. For an appellant other than the state, who does not request representation by the state public defender, whether the appellant will represent himself or herself or will be represented by retained counsel. If the appellant has retained counsel to pursue postdisposition or appellate relief, counsel's name and address shall be included.
809.107(2)(c)
(c) Early notice of intent to pursue postdisposition or appellate relief. If the record discloses that the judgment or order appealed from was entered after the notice of intent to pursue postdisposition or appellate relief was filed, the notice of intent shall be treated as filed after that entry and on the date of the entry.
