2015 Chapter 809

809.32 Note Subsection (1) (g) creates a new rule that requires fact-finding upon a remand to the circuit court if the defendant's response to the no-merit report and the attorney's supplemental no-merit report and affidavit allege facts outside the record; and if the facts alleged by the defendant, if true, would make resolution of the appeal under sub. (3) inappropriate.

809.32 Note The second sentence in sub. (2) requires the attorney to state, in the no-merit notice of appeal, of the time limit for filing the no-merit report and the calculation used to determine that time limit. The fourth sentence in sub. (2) requires the attorney to file a statement on transcript with the clerk, but exempts counsel from serving a transcript on other parties. The fifth sentence in sub. (2) requires counsel to serve copies of all other papers on the state.

809.32 Note Subsection (2) (a) establishes the time limits if a no-merit report is not preceded by a postconviction motion. The cross-reference was changed from s. 809.30 (2) (g) to (e) because only the original transcript and circuit court case record request triggers the 180-day time limit.

809.32 Note Subsection (2) (b) establishes the time limits if a no-merit report follows a postconviction motion.

809.32 Note The 10-day time limit in sub. (4) was changed to 14 days. Please see the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001]

809.32 Note Judicial Council Note, 2002: When a no-merit report is filed, s. 809.32 (1) (e) gives the person 30 days after the service of the no-merit report to file a response. The time limit in sub. (1) (d) is amended to adjust the time within which the attorney must send copies of the transcript and circuit court case record because five days should be sufficient time for the attorney to make copies and send them to the person. The amendment is intended to avoid delay that may occur if the person is not served with the record in time to utilize it in preparing a response to the no-merit report. [Re Order No. 02-01 effective January 1, 2003]

809.32 Annotation This rule is constitutional although it does not secure an indigent convict the right to counsel in preparing a petition for review. State v. Mosley, 102 Wis. 2d 636, 307 N.W.2d 200 (1981).

809.32 Annotation The “no-merit brief" requirement under sub. (1) does not deny the right to counsel. State ex rel. McCoy v. Appeals Ct., 137 Wis. 2d 90, 403 N.W.2d 449 (1987).

809.32 Annotation Appellate counsel's closing of a file because of no merit, without the defendant knowing of the right to disagree and compel a no merit report, is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994).

809.32 Annotation The no merit appeal procedure does not apply to appeals regarding terminations of parental rights under s. 809.107. Gloria A. v. State, 195 Wis. 2d 268, 536 N.W.2d 396 (Ct. App. 1995), 95-0315.

809.32 Annotation Together, sub. (4) and s. 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review, provided counsel does not determine the appeal to be without merit. If counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996), 95-1096.

809.32 Annotation When a defendant's postconviction issues have been addressed by the no merit procedure under this section, the defendant may not again raise those issues or other issues that could have been raised in a previous postconviction motion under s. 974.06, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. State v. Tillman, 2005 WI App 71, 281 Wis. 2d 157, 696 N.W.2d 574, 04-0966.

809.32 Annotation A convicted defendant could not be faulted for his reliance on his appellate counsel's assertion in the no-merit report that there were no issues of arguable merit when there was a potential appellate issue that was also not identified by appellate court review. In that case the defendant had shown a sufficient reason for failing to raise the issue in a response to the no-merit report and was not procedurally barred from raising the issue of a sentence being illegally increased. State v. Fortier, 2006 WI App 11, 289 Wis. 2d 179, 709 N.W.2d 893, 04-3189.

809.32 Annotation A defendant's constitutional right to effective representation for the purpose of exercising the right to directly appeal a conviction did not require postconviction counsel to offer the defendant the option of a “partial no-merit" report on any potential issues remaining after the defendant declined for strategic reasons to pursue an issue having arguable merit. The U.S. Constitution requires only that “an indigent's appeal will be resolved in a way that is related to the merit of that appeal." Ford v. Holm, 2006 WI App 176, 296 Wis. 2d 119, 722 N.W. 2d 609, 02-1828.

809.32 Annotation This section comports with constitutional requirements. McCoy v. Court of Appeals, 486 U.S. 429 (1988).

809.32 Annotation A defendant is not required to file a response to the no-merit report, but the fact that a defendant does not file a response to a no-merit report is not, by itself, a sufficient reason to permit the defendant to raise new claims under s. 974.06. Defendants must show a sufficient reason for failing to raise an issue in a response to a no-merit report because the court will have performed an examination of the record and determined any issues noted or any issues that are apparent to be without arguable merit. State v. Allen, 2010 WI 89, 328 Wis. 2d 1, 786 N.W.2d 124, 07-0795.

809.32 Annotation A defendant gets review of issues not raised only if the court of appeals follows the no-merit protocol. If the no-merit procedure was followed, then it is irrelevant whether the defendant raised his or her claims. He or she got review of those claims from the court of appeals and is barred from raising them again. If it was not followed, it is similarly irrelevant whether the claims were raised. The failure to raise them may or may not have contributed to the court of appeals' failure to identify issues of arguable merit, but the court of appeals and appellate counsel should have found them and the defendant may not be barred from bringing a motion under s. 974.06 if the no-merit procedure was not followed. State v. Allen, 2010 WI 89, 328 Wis. 2d 1, 786 N.W.2d 124, 07-0795.

809.32 Annotation If the court of appeals fails to discuss an issue of actual or arguable merit, the defendant has the opportunity to file: 1) a motion for reconsideration of the decision under sub. (1); 2) a petition for review with the supreme court; or 3) an immediate s. 974.06 motion, identifying any issue of arguable merit that was overlooked and, in the latter instance, explaining why nothing was said in a response to the no-merit report. Delay in these circumstances can seldom be justified. Failure of a defendant to respond to both a no-merit report and the decision on the no-merit report firms up the case for forfeiture of any issue that could have been raised. State v. Allen, 2010 WI 89, 328 Wis. 2d 1, 786 N.W.2d 124, 07-0795.

subch. IV of ch. 809 SUBCHAPTER IV

APPEAL PROCEDURE IN COURT OF APPEALS
IN TERMINATION OF PARENTAL RIGHTS,
CH. 799, TRAFFIC REGULATION,
MUNICIPAL ORDINANCE VIOLATION, AND
PARENTAL CONSENT TO ABORTION CASES

809.40 809.40  Rule (Appeals in termination of parental rights, ch. 799, traffic regulation, municipal ordinance violation, and parental consent to abortion cases).

809.40(1m) (1m) An appeal from an order denying a petition under s. 48.375 (7) is governed by the procedures specified in s. 809.105, and an appeal from an order or judgment under s. 48.43 is governed by the procedures specified in s. 809.107.

809.40(2) (2) An appeal to the court of appeals from a judgment or order in a ch. 799, traffic regulation or municipal ordinance violation case must be initiated within the time period specified in s. 808.04, and is governed by the procedures specified in ss. 809.01 to 809.26 and 809.50 to 809.85, unless a different procedure is expressly provided in ss. 809.41 to 809.43.

809.40(3) (3) Any civil appeal to the court of appeals under sub. (2) is subject to the docketing statement requirement of s. 809.10 (1) (d) and may be eligible for the expedited appeals program in the discretion of the court.

809.40 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1979 c. 32 s. 92 (16); Sup. Ct. Order, 92 Wis. 2d xiii (1979); 1979 c. 175 s. 53; 1979 c. 355; 1981 c. 390 s. 252; Sup. Ct. Order, 130 Wis. 2d xi xix ((1986); Sup. Ct. Order, 131 Wis. 2d xv (1986); Sup. Ct. Order, 136 Wis. 2d v, xxv ((1987); 1991 a. 263; 1993 a. 395; 1995 a. 77; 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.

809.40 Note Judicial Council Committee's Note, 1978: Rule 809.40 establishes the time periods for appealing in a misdemeanor case or Chapter 48, 51 or 55 case or seeking postconviction relief in a misdemeanor case pursuant to s. 974.02 (1). It also makes the procedures set forth in Rules 809.30 to 809.32 apply to these types of cases.

809.40 Note Rules 809.41 to 809.43 establish special procedures for appeals that may be heard by one appellate judge. The appeal time periods in Chapter 299, traffic regulation and municipal ordinance violation cases, are found in s. 808.04. [Re Order effective July 1, 1978]

809.40 Note Judicial Council Committee's Note, 1979: Sub. (2) is repealed and recreated to place into it for purposes of clarity the appropriate reference in Chapter 808 containing the appeal time periods for Chapter 799, traffic regulations, and municipal ordinance violations cases. No substantive change is intended. [Re Order effective Jan. 1, 1980]

809.40 Note Judicial Council Note, 2002: Sub. (1) is repealed to eliminate confusing cross-references to appeal procedures under Subchapter III. Appeals under former sub. (1) were and are governed by the procedures in ss. 809.30 to 809.32. [Re Order No. 02-01 effective January 1, 2003.]

809.41 809.41  Rule (Motion for 3-judge panel or hearing in county of origin).

809.41(1) (1)  Motion for 3-judge panel. If an appellant or a petitioner requesting the court of appeals to exercise its supervisory jurisdiction or its original jurisdiction to issue prerogative writs or its appellate jurisdiction to grant petitions for leave to appeal desires the matter to be decided by a 3-judge panel, the appellant or petitioner shall file with the copy of the notice of appeal required by s. 809.10 (1) (a), or with the petition requesting the court to exercise its supervisory, original, or appellate jurisdiction, a motion for a 3-judge panel. Any other party must file a motion under this rule for a 3-judge panel within 14 days after service of the notice of appeal or with the response to the petition. The failure to file a motion under this rule waives the right to request the matter to be decided by a 3-judge panel. A motion for a 3-judge panel in a case in which the state is a party shall also be served upon the attorney general. The attorney general may file a response to the motion within 11 days after service.

809.41(2) (2) Decision on motion for 3-judge panel. The chief judge may change or modify his or her decision on a motion that the matter be decided by a 3-judge panel at any time prior to a decision on the merits of the appeal or petition.

809.41(3) (3) Three-judge panel on court's own motion. Whether or not a motion for a 3-judge panel has been filed, the chief judge may order that an appeal or petition be decided by a 3-judge panel at any time prior to a decision on the merits of the appeal or petition.

809.41(4) (4) Motion for hearing in county of origin. If an appellant desires that the appeal be heard in the county where the case or action originated under s. 752.31 (3), the appellant shall file with the copy of the notice of appeal required by s. 809.10 (1) (a) a motion requesting a hearing in the county of origin. Any other party must file a motion requesting a hearing in the county of origin within 14 days after service of the notice of appeal. The failure to file a motion under this subsection waives the right to request the appeal be heard in the county where the case or action originated.

809.41 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); Sup. Ct. Order 151 Wis. 2d xvii (1989); 1993 a. 486; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii.

809.41 Note Judicial Council Committee's Note, 1979: Sub. (3) is created to clarify that the chief judge of the Court of Appeals has the authority to order that an appeal be decided by a 3-judge panel after it has initially been assigned to a single Court of Appeals judge. This authority of the chief judge may be exercised at any time prior to a decision on the merits of the appeal by the single Court of Appeals judge to whom the appeal was originally assigned. [Re Order effective Jan. 1, 1980]

809.41 Note Judicial Council Committee's Note, 1981: Rule 809.41 is amended to harmonize with ch. 192, Laws of 1979.

809.41 Note Sub. (1) is amended to apply the procedure for requesting a 3-judge panel for appeals to other proceedings in the types of case specified in s. 752.31 (2). The rule is also amended to require that if the motion for 3-judge panel is in a case in which the state is a party the motion must be served upon the attorney general as well as all persons of record. If the district attorney files the motion for 3-judge panel, the district attorney must serve the motion on the attorney general. The attorney general is given 7 days to respond to the motion.

809.41 Note The rule is further amended to require that the motion for 3-judge panel be filed with the copy of the notice of appeal required to be sent to the clerk of the court of appeals under Rule 809.10 (1) (a) and not with the original notice of appeal filed with the clerk of the circuit court.

809.41 Note Subs. (2) and (3) are amended to clarify that their provisions may apply to both an appeal and a petition requesting the exercise of supervisory jurisdiction or original jurisdiction to issue a prerogative writ.

809.41 Note Section 752.31, as amended by ch. 192, Laws of 1979, provides for a hearing in the county of origin for appeals but not for other proceedings such as a petition for supervisory writ or original jurisdiction prerogative writ. Sub. (4) is created to set out in a separate subsection of Rule 809.41 the procedure to request that an appeal be heard in the county where a case or action originated as authorized under sub. 752.31 (3). The creation of this separate subsection makes no substantive change in the prior procedure that was contained in Rule 809.41 (1). The rule requires that the motion for hearing in county of origin be filed with the copy of the notice of appeal required to be sent to the clerk of the court of appeals under Rule 809.10 (1) (a).

809.41 Note Rule 809.41 is also amended to clarify that the appeal or petition is decided rather than heard, as oral argument may not occur in all matters filed in the court of appeals. [Re Order effective Jan. 1, 1982]

809.41 Note Judicial Council Note, 2001: Titles were added. The time limits in sub. (1) and sub. (4) have been changed from 7 to 11 and 10 to 14 days. See the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001]

809.42 809.42  Rule (Waiver of oral argument). The appellant and respondent in an appeal under s. 752.31 (2) may waive oral argument, subject to approval of the court.

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]

subch. V of ch. 809 SUBCHAPTER V

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), 99-1526, 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), 99-1526.

809.50 Annotation A person who is granted leave to appeal a nonfinal order is limited solely to those issues outlined in the petition to the court of appeals. State v. Aufderhaar, 2004 WI App 208, 277 Wis. 2d 173, 689 N.W.2d 674, 03-2820. Reversed on other grounds. State v. Aufderhaar, 2005 WI 108, 283 Wis. 2d 336, 700 N.W.2d 4, 03-2820

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)(c) (c) The relief sought; and

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 Note 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 Note 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]