808.07 Annotation
In determining whether to grant relief pending appeal, the court of appeals exercises its discretion. The court of appeals should explain its discretionary decision-making to ensure the soundness of that decision-making and to facilitate judicial review. In this case, the court of appeals erroneously exercised its discretion when the court denied the defendant's motion for relief pending appeal without explaining the reasoning for the discretionary denial decision. State v. Scott,
2018 WI 74,
382 Wis. 2d 476,
914 N.W.2d 141,
16-2017.
808.07 Annotation
Involuntary medication orders are subject to an automatic stay pending appeal. On a motion to lift an automatic stay, the state must: 1) make a strong showing that it is likely to succeed on the merits of the appeal; 2) show that the defendant will not suffer irreparable harm if the stay is lifted; 3) show that no substantial harm will come to other interested parties if the stay is lifted; and 4) show that lifting the stay will do no harm to the public interest. State v. Scott,
2018 WI 74,
382 Wis. 2d 476,
914 N.W.2d 141,
16-2017.
808.07 Annotation
When reviewing the likelihood of success on appeal in conducting a stay analysis, a circuit court must consider the standard of review, along with the possibility that appellate courts may reasonably disagree with its legal analysis. The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movant will suffer absent the stay. Thus, the greater the potential injury, the less a movant must prove in terms of success on appeal. Waity v. Lemahieu,
2022 WI 6,
400 Wis. 2d 356,
969 N.W.2d 263,
21-0802.
808.07 Annotation
In conducting a stay analysis, courts consider whether the movant shows that no substantial harm will come to other interested parties. Courts consider the period of time that the case is on appeal, not any harm that could occur in the future. Courts must consider the extent of harm the non-movant will experience if a stay is entered, but the non-movant is ultimately successful in having the injunction affirmed and reinstated. Thus, the stay analysis is not a mere repetition of any harm analysis conducted by the circuit court when it originally issued an order granting relief, which may consider generally all future harms to the non-movant. Waity v. Lemahieu,
2022 WI 6,
400 Wis. 2d 356,
969 N.W.2d 263,
21-0802.
808.075
808.075
Permitted court actions pending appeal. 808.075(1)(1)
In any case, whether or not an appeal is pending, the circuit court may act under ss.
801.18 (16),
804.02 (2),
805.15,
805.16,
805.17 (3),
806.07,
806.08,
806.15 (2),
806.24 (4),
808.07 (1) and
(2), and
809.12.
808.075(2)
(2) In a case appealed under s.
809.30, the circuit court retains the power to act on all issues until the notice of appeal has been filed with the clerk of the circuit court, except that the circuit court may not act upon any motion to extend a time limit that is specified in s.
809.30. Thereafter, the circuit court may act only as provided in subs.
(1) and
(4).
808.075(3)
(3) In a case not appealed under s.
809.30, the circuit court retains the power to act on all issues until the record has been transmitted to the court of appeals. Thereafter, the circuit court may act only as provided in subs.
(1) and
(4).
808.075(4)
(4) The circuit court may act as to the following despite the pendency of an appeal:
808.075(4)(a)4.
4. Hearing for child held in custody under s.
48.21 or an adult expectant mother of an unborn child held in custody under s.
48.213.
808.075(4)(b)4.
4. Commitment, conditional release, recommitment and discharge under s.
971.17 of a person found not guilty by reason of mental disease or defect.
808.075(4)(d)4.
4. Revision of judgment or order for child support, maintenance payments or family support payments under s.
767.59 or
767.89.
808.075(4)(d)5.
5. Order for temporary maintenance, temporary child support or for suit money, counsel fees and disbursements in the appellate court under s.
767.273.
808.075(4)(d)6.
6. Property division, where the court has expressly or impliedly reserved jurisdiction, provided the court does not revise or modify its final division of property.
808.075(4)(e)
(e) In a case under chs.
701 or
853 to
879, any matter, unless the appellate court directs the trial court not to act on specific issues or the trial court declines to act because the matter directly affects the issues on appeal.
808.075(4)(g)7.
7. Commitment, conditional release, recommitment and discharge under s.
971.17 of a person found not guilty by reason of mental disease or defect.
808.075(5)
(5) Notwithstanding the limitations of this section, any party may petition the appellate court for remand to the circuit court for action upon specific issues.
808.075(6)
(6) In addition to sub.
(5), the appellate court may remand the record to the circuit court for additional proceedings while the appeal is pending.
808.075(7)
(7) Upon completion of an action taken by the circuit court under sub.
(1),
(4),
(5) or
(6) of this section, the clerk shall send a copy of the judgment or order to the appellate court.
808.075(8)
(8) If an appellate court remands the record to the circuit court for additional proceedings under sub.
(5) or
(6), the appellate court, in the pending appeal, may review the judgment or order that the circuit court enters following remand. If any party is aggrieved by the judgment or order of the circuit court, the party shall file in the appellate court a written statement of objections to the judgment or order within 14 days after the record is returned to the clerk of the appellate court. A party that files a statement of objections need not file an additional notice of appeal or cross-appeal.
808.075 History
History: Sup. Ct. Order, 146 Wis. 2d xiii (1988);
1989 a. 86;
1993 a. 16,
446,
479,
481;
1995 a. 38,
73,
77,
275;
1997 a. 35,
191,
292,
296,
334;
1999 a. 9; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii;
2001 a. 16;
2005 a. 264,
387,
434;
2005 a. 443 ss.
263,
265; Sup. Ct. Order No.
14-03, 2016 WI 29, 368 Wis. 2d xiii;
2017 a. 365 s.
111;
2019 a. 95,
109;
2021 a. 238 ss.
44,
45;
2021 a. 240 s.
30.
808.075 Note
Judicial Council Note, 1988: In re Marriage of Hengel v. Hengel,
120 Wis. 2d 522, 355 N. W. 2d 846 (Ct. App. 1984), the court of appeals held that since there is no specific statutory exception, the trial court had no competence to enter an order requiring the husband to contribute to his wife's attorney's fees for representation in the trial court after a notice of appeal had been filed. Section 808.075 is created to specify the actions that may be taken in circuit court after a notice of appeal has been filed in cases appealed under s. 809.30 and after transmittal of the record to an appellate court in other cases.
808.075 Note
Matters affecting trusts and estates have historically been treated as a series of special proceedings, and the trial court is charged with ongoing supervision and administrative duties affecting such matters. Because of the ongoing involvement of the trial court, sub. (4) (e) reserves full competence to act, unless it is determined that competence should be restricted as to specific issues. [Re Order effective Jan. 1, 1989]
808.075 Note
Judicial Council Note, 2001: The second sentence in sub. (2) is a codification of
State v. Harris,
149 Wis. 2d 943,
440 N.W.2d 364 (1989). Subsection (8) is intended to clarify procedure following a remand and to eliminate an additional notice of appeal or cross-appeal. The obligations of a person filing a statement of objections are the same as those of a cross-appellant. [Re Order No. 00-02 effective July 1, 2001]
808.075 Annotation
An indigent in a civil case is entitled to waiver of transcript fees on appeal if the trial judge finds that the indigent has arguable reason to believe that the indigent is entitled to redress on appeal. State ex rel. Girouard v. Circuit Court,
155 Wis. 2d 148,
454 N.W.2d 792 (1990).
