Chapter 809

809.70 Note NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.70 Note Comment, 2021: A proceeding under this section is a new action that must be served on the respondents by the initiating parties using traditional methods.

809.71 809.71 Rule (Supervisory writ).

809.71(1) (1) A person may request the supreme court to exercise its supervisory jurisdiction over a court and the judge presiding therein or other person or body by filing a petition in accordance with s. 809.51. The petition shall be served on each party and proposed respondent, and if applicable, upon the originating court or tribunal, by traditional methods as provided in s. 809.80 (2). A person seeking a supervisory writ from the supreme court shall first file a petition for a supervisory writ in the court of appeals under s. 809.51 unless it is impractical to seek the writ in the court of appeals. A petition in the supreme court shall show why it was impractical to seek the writ in the court of appeals or, if a petition had been filed in the court of appeals, the disposition made and reasons given by the court of appeals.

809.71(2) (2) The clerk of court shall docket the petition upon receipt of the items referred to in sub. (1). The clerk shall assign a case number, create a notice that the petition has been docketed, transmit the notice of docketing to the clerk of circuit court if applicable, and send the notice to the parties by traditional methods.

809.71 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390 s. 252; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.71 Note Judicial Council Committee’s Note, 1981: The supreme court will not exercise its supervisory jurisdiction where there is an adequate alternative remedy. Unless the court of appeals is itself the object of the supervisory writ, usually there is an adequate alternative remedy of applying to the court of appeals under Rule 809.51 for the supervisory writ. The amendment to Rule 809.71 establishes that before a person may request the supreme court to exercise its supervisory jurisdiction, the person must first seek the supervisory writ in the court of appeals, unless to do so is impractical. Following the decision of the court of appeals, the amendment does not preclude the supreme court from considering a petition for review under Rule 809.62 or a petition for supervisory writ under Rule 809.71, depending upon the circumstances and the petitioner’s ability to establish the respective governing criteria. [Re Order effective Jan. 1, 1982]

809.71 Note NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.71 Note Comment, 2021: Supervisory writs do not always arise from a pending case through which the parties can be served electronically. A proceeding under this section is a new action that must be served on the respondents by the initiating parties using traditional methods.

809.71 Annotation A party requesting a supervisory writ under this section must demonstrate that: 1) an appeal is an inadequate remedy; 2) grave hardship or irreparable harm will result; 3) the duty of the trial court is plain, and it acted or intends to act in violation of that duty; and 4) the request for relief is made promptly and speedily. State ex rel. DNR v. Court of Appeals, 2018 WI 25, 380 Wis. 2d 354, 909 N.W.2d 114, 16-1980.

809.71 Annotation The term “supervisory writ” is both: 1) the general term used in petitioning the court of appeals to exercise its constitutional supervisory authority and in petitioning the supreme court to exercise its constitutional superintending authority; and 2) a new writ the supreme court devised independent of the traditional common law writs. State ex rel. CityDeck Landing LLC v. Circuit Court, 2019 WI 15, 385 Wis. 2d 516, 922 N.W.2d 832, 18-0291.

809.71 Annotation When the circuit court in this case ordered the arbitration of a private dispute stayed until the court could decide an insurance coverage dispute, the plaintiff fulfilled all four criteria for the supreme court to issue a supervisory writ under this section. State ex rel. CityDeck Landing LLC v. Circuit Court, 2019 WI 15, 385 Wis. 2d 516, 922 N.W.2d 832, 18-0291.

subch. VIII of ch. 809 SUBCHAPTER VIII

MISCELLANEOUS PROCEDURES IN COURT OF APPEALS AND SUPREME COURT

809.80 809.80 Rule (Filing and service of documents by traditional methods).

809.80(1) (1) Filing by traditional methods. A person who is not an electronic filing user, as defined in s. 809.01 (33), shall file a paper copy of any document required to be filed by these rules with the clerk of the court unless a different place of filing is expressly required or permitted by statute or rule. The clerk of the court is located at 110 E. Main Street, Madison, Wisconsin 53703. The mailing address for the clerk of the supreme court and the court of appeals is P.O. Box 1688, Madison, Wisconsin 53701-1688.

809.80(2) (2) Service by traditional methods.

809.80(2)(a) (a) In this subsection, “service by traditional methods” means service in the manner provided in s. 801.14 (1), (2), (2m), and (4) of any document required or authorized under these rules to be filed in a trial or appellate court.

809.80(2)(bm) (bm) A party initiating a proceeding under s. 809.51, 809.70 or 809.71 shall serve a petition and memorandum on all parties by traditional methods.

809.80(2)(c) (c) Except as provided in par. (bm), a paper party may initiate a proceeding in the appellate courts without serving electronic filing users by traditional methods. The clerk of the circuit or appellate court shall promptly enter filed documents into the electronic filing system and generate a notice of docketing. Service on electronic filing users shall be as provided in s. 809.10, 809.11, 809.14, 809.32, 809.50, 809.60, or 809.62.

809.80(2)(d) (d) A paper party may file subsequent documents in the appellate courts without serving electronic filing users by traditional methods. The clerk of the circuit or appellate court shall image the documents and promptly enter the documents into the electronic filing system. The notice of activity generated by the entry shall constitute service on the electronic filing users in the case as provided in ss. 801.18 (6) (d) and 809.801 (6) (d).

809.80(2)(e) (e) Paper parties shall be served by traditional methods. Paper parties shall serve other paper parties by traditional methods.

809.80(3) (3) Time of filing by traditional methods.

809.80(3)(a) (a) All filings — general rule. Except as provided in pars. (b) to (e), filing by traditional methods is not timely unless the clerk receives the paper documents within the time fixed for filing. Filing may be accomplished by hand delivery, mail, or by courier. Filing by facsimile is permitted only as set forth in s. 801.16 (2) (a) to (f) and the rules and directives governing facsimile filing in the court of appeals and supreme court. Documents completing transmission after 11:59 p.m. central time are considered filed the next business day the clerk’s office is open.

809.80(3)(b) (b) Brief or appendix — general rule. Except as provided in par. (c), a brief or appendix is timely filed if, on or before the last day of the time fixed for filing, it is correctly addressed and:

809.80(3)(b)1. 1. Deposited in the United States mail for delivery to the clerk by first-class mail, or other class of mail that is at least as expeditious, postage pre-paid; or

809.80(3)(b)2. 2. Delivered to a 3rd-party commercial carrier for delivery to the clerk within 3 calendar days.

809.80(3)(c) (c) Pro se brief or appendix from person confined in institution — special rule. A pro se brief or appendix from a person confined in an institution is timely filed if the brief or appendix is correctly addressed and delivered to the proper institution authorities for mailing on or before the last day of the time fixed for filing. A confined person who mails a brief or appendix under this subsection shall also file a certification or affidavit setting forth the date on which the document was delivered to the proper institution authorities for mailing.

809.80(3)(d) (d) Petition for review — general rule. Except as provided in par. (e), a petition for review is timely filed only if the clerk actually receives the petition within the time fixed for filing.

809.80(3)(e) (e) Pro se petition for review from person confined in institution — special rule. The 30-day time limit for the clerk’s receipt of a pro se petition for review filed by a person confined in an institution is tolled on the date that the confined person delivers a correctly addressed petition to the proper institution authorities for mailing. The confined person shall also file a certification or affidavit setting forth the date on which the petition was delivered to the proper institution authorities for mailing.

809.80(4) (4) Proof of filing date for brief or appendix filed by traditional methods.

809.80(4)(a) (a) When a brief or appendix is filed by mail or commercial carrier in accordance with s. 809.80 (3) (b), the person filing the document shall include a certification or affidavit setting forth the date and manner by which the document was mailed or delivered to a 3rd-party commercial carrier.

809.80(4)(b) (b) If a certification or affidavit is included, the clerk’s office shall consider the brief or appendix filed on the date of mailing or delivery set forth in the certification or affidavit. If no certification or affidavit is included, the date of filing shall be the date on which the brief or appendix is received by the clerk’s office.

809.80(4)(c) (c) The date shown on a postage meter does not establish that the document was mailed on that date.

809.80(5) (5) Clerk review. The clerk may review a document for compliance with rule requirements relating to form, including caption, format, length, and confidentiality, to determine if the electronic document should be accepted for filing. If the clerk rejects the document following review, the filer shall receive notification of the rejection. The filer may be required to resubmit the document.

809.80(6) (6) Printing specifications. When paper copies of briefs or appendices in cases are required to be filed or served, the briefs or appendices shall be printed, typed, duplicated or reproduced by a process that produces a clear, black image of the text on white paper, in conformity with this chapter.

809.80 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390 s. 252; Sup. Ct. Order, 130 Wis. 2d xi (1986); 1989 a. 31; 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; 2005 a. 253; Sup. Ct. Order No. 08-15 and Sup. Ct. Order No. 08-18, 2009 WI 4, 311 Wis. 2d xxix; Sup. Ct. Order No. 13-10, 2014 WI 45, 354 Wis. 2d xliii; Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii; Sup. Ct. Order No. 14-03A, 2016 WI 80, 370 Wis. 2d xxxiii; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.80 Note Judicial Council Committee’s Note, 1978: The prior requirement of an affidavit of service is eliminated. The provision of the Rules of Civil Procedure that the filing of a paper is a certification that the paper has been served is adopted. [Re Order effective July 1, 1978]

809.80 Note Judicial Council Note, 1986: Sub. (2) (b) does not change the existing service rules; it is intended to consolidate and clarify the procedure specified by ss. 59.47 (7), 165.25 (1) and 752.31 (2) and (3). [Re Order effective July 1, 1986]

809.80 Note Judicial Council Note, 2001: Subsection (1) was amended to provide the correct address of the clerk of the supreme court and court of appeals. [Re Order No. 00-02 effective July 1, 2001]

809.80 Note Judicial Council Note, 2002: Subsections (3) through (4) are new, and are taken largely from the Federal Rules of Appellate Procedure, Rule 25. Under the former rules, a brief was not filed until the clerk physically received it, regardless of when the brief may have been mailed. Because a party outside the Madison area had to allow time for postal or courier delivery, briefing periods were often adversely affected merely to ensure that a brief was actually received by the clerk before the expiration of the filing deadline.

809.80 Note Subsection (3) (a) retains the general rule that a document is not filed until it is received by the clerk. Filing may be accomplished in person, by mail, or by courier or common carrier. Electronic filing of papers, other than filing by facsimile, is not permitted unless otherwise ordered by the supreme court. See s. 801.16 (2) addressing rules governing facsimile filing. The supreme court and the court of appeals have adopted local rules governing facsimile filing.

809.80 Note However, sub. (3) (b) creates a mailbox rule for briefs and appendices only. For briefs and appendices, filing will be considered timely if, on or before the deadline, the brief or appendix is correctly addressed and either: (a) deposited in the United States mail for delivery by first-class mail, or other class of mail at least as expeditious, postage pre-paid, or (b) delivered to a commercial delivery service for delivery within 3 calendar days. When a brief or appendix is mailed or sent by commercial courier, subsection (4) requires that the party also file a certification or affidavit of mailing stating the date and manner of mailing or delivery.

809.80 Note Subsection (3) (c) addresses pro se briefs and appendices filed by confined persons. For confined persons, a brief or appendix will be timely filed if, on or before the deadline, the brief or appendix is correctly addressed and delivered to the proper institution authorities for mailing. In order for the brief or appendix to be timely filed under sub. (3) (c), a certification or affidavit must be filed stating the date on which the brief or appendix was delivered to the proper institution authorities for mailing. The important point is that the pro se confined person must follow the institution rules or practices as to outgoing mail — whether they require placing mail in the hands of certain institution authorities, depositing mail in a designated receptacle, or some other procedure. See State ex rel. Nichols v. Litscher, 2001 WI 119 ¶ 32 n. 6, 247 Wis. 2d 1013, 1028 n. 6, 635 N.W.2d 292.

809.80 Note Subsection (3) (d) reiterates the long-standing rule that a petition for review filed with the clerk of the supreme court must actually be received by the clerk on or before the last day of the filing period. The time limit for filing a petition for review cannot be extended. The timely filing of a petition for review is necessary to invoke the supreme court’s appellate jurisdiction. See First Wis. Nat’l Bank of Madison v. Nicholaou, 87 Wis. 2d 360, 274 N.W.2d 704 (1979). The mailbox rule for briefs and appendices created in sub. (3) (b) does not apply to the filing of a petition for review under s. 809.62.

809.80 Note Subsection (3) (e) expands the coverage of the rule tolling the time limit for the clerk’s receipt of a pro se petition for review from a prisoner on the date the prisoner delivers a correctly addressed petition to the proper prison authorities, as established in State ex rel. Nichols v. Litscher, supra. to include petitions for review from all pro se confined persons. Subsection (3) (e) also adds a requirement for filing of a certification or affidavit setting forth the date on which the petition for review was delivered to the proper institution authorities for mailing. The important point is that in order to trigger tolling, the pro se confined person must follow the institution rules or practices as to outgoing mail — whether they require placing mail in the hands of certain institution authorities, depositing mail in a designated receptacle, or some other procedure. See State ex rel. Nichols v. Litscher, supra. [Re Order No. 02-01 effective January 1, 2003]

809.80 Note To avoid potential delay, address all types of mail to: Clerk of the Court, Supreme Court of Wisconsin, P. O. Box 1688, Madison, WI 53701. Gunderson v. State, 106 Wis. 2d 611, 318 N.W.2d 779 (1982).

809.80 Note NOTE: Sup. Ct. Order No. 14-03 states that “the Comments to the statutes and to the supreme court rules created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.80 Note Comment, 2016: Subd. (3) (a) is amended to maintain the time for filing by facsimile in the appellate courts as the regular business hours of the clerk of the supreme court and court of appeals.

809.80 Note NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.80 Note Comment, 2021: Section 809.80 adds the term “traditional methods” to refer to forms of filing and service such as hand-delivery and mail, describes how paper parties may file their documents, and outlines the standards that paper briefs must meet for format, printing, and proof of mailing. This is distinguished from electronic filing and service, which are addressed in s. 809.801.

809.80 Note Sub. (2) does not require a paper party to provide service of a filed document on an electronic party. Because the clerk will be scanning all paper documents submitted by paper parties, electronic filing users will automatically receive notification of new paper documents without the need for traditional service. The current provision regarding service on the attorney general in certain cases has been moved to s. 809.802.

809.80 Note Under sub. (3), documents faxed by 11:59 pm are considered filed the same day. This gives paper parties the same filing hours as electronic parties. The appellate courts place a number of restrictions on filing by fax with respect to length, type of document, and payment of applicable fees. Persons wishing to file by fax should consult the clerk’s office for guidance.

809.80 Note Since 2009, the appellate clerk has reviewed electronic briefs to make sure that rule requirements relating to form have been met. Under sub. (5), the clerk’s review includes review of all filed documents, both paper and electronic. The same review is applied to electronic documents under s. 809.801 (4) (b).

809.801 809.801 Rule (Appellate electronic filing).

809.801(1) (1) Definitions. The definitions in s. 809.01 apply in this section.

809.801(2) (2) Effective date; applicability.

809.801(2)(a) (a) At the direction of the supreme court, the director shall implement an electronic filing system for the Wisconsin supreme court and court of appeals. The requirements of this section shall govern the electronic filing of documents in all types of actions and proceedings in the appellate courts.

809.801(2)(b) (b) At the direction of the supreme court, mandatory use of the electronic filing system shall be phased in according to a schedule set by the director until the system has been fully implemented. Information about the transition schedule shall be made readily available to the public in advance of its application.

809.801(2)(c) (c) Subject to the schedule in par. (b), mandatory users shall be required to use the appellate court electronic filing system for all new filings covered by the schedule. Electronic filing shall be required for all new actions and proceedings brought in the court of appeals and the supreme court, and for all new documents submitted in previously filed cases, except as otherwise provided in this section.

809.801(2)(e) (e) Electronic filing is limited to methods specifically approved by the director. The director may enter into an agreement with any state agency to allow electronic filing through a custom data exchange between the court case management system and the agency’s automated information system. Parties using a custom data exchange are considered mandatory users and are subject to the requirements of this section.

809.801(2)(f) (f) The procedures in this section shall be interpreted in a manner consistent with existing procedures. This section is not intended to limit the director’s approval of new technologies that accomplish the same functions.

809.801(2)(g) (g) All judicial officers, the clerk of court, and all court staff shall cooperate and assist with the implementation of electronic filing.

809.801(2)(h) (h) This section does not apply to documents required by law to be filed with court officials that are not filed in an action before the court. These documents may be filed by traditional methods unless otherwise required.

809.801(2)(k) (k) The procedures under this section are intended to be consistent with the procedures governing electronic filing and service in the circuit courts under s. 801.18. The circuit and appellate court electronic filing and service rules shall be interpreted consistently to the extent practicable.

809.801(3) (3) Registration requirements.

809.801(3)(a) (a) The following individuals shall register for access to the electronic filing system prior to filing documents:

809.801(3)(a)1. 1. Licensed Wisconsin attorneys.

809.801(3)(a)2. 2. Attorneys appearing under SCR 10.03 (4).

809.801(3)(a)3. 3. High-volume filing agents.

809.801(3)(b) (b) Parties who are not subject to par. (a) may voluntarily register to use the electronic filing system.

809.801(3)(c) (c) Except as otherwise provided, a party not subject to par. (a) who does not choose to participate in the electronic filing system under par. (b) shall file, serve, and receive paper documents by traditional methods.

809.801(3)(d) (d) All users shall register through the electronic filing system by executing a user agreement governing the system’s terms of use. To register, users must have the capability to produce, file, and receive electronic documents meeting the technical requirements of the electronic filing system. The electronic filing system shall make information on the technical requirements for filing readily available. By registering, users agree to electronically file all documents to the extent the electronic filing system can accept them. Users shall promptly provide notice through the electronic filing system of any change in the information provided for registration.

809.801(3)(e) (e) Upon completion of a properly executed user agreement under par. (d), the electronic filing system shall provide the user with a confidential, secure authentication procedure for access to the electronic filing system. This authentication procedure shall be used only by that user and by any agents or employees that the user authorizes. The same authentication procedure shall be used for all cases on which the user is an attorney or a party. The electronic filing system may reset authentication procedures as needed for administrative and security purposes. Upon learning that the confidentiality of the authentication procedure has been inadvertently or improperly disclosed, the user shall immediately report that fact through the electronic filing system.

809.801(3)(f) (f) After registering to use the electronic filing system, a user shall also opt in as an attorney or party on any case in which the user intends to participate. Users shall promptly opt in or out on each case upon beginning or ending appearance as an attorney or as a party. Filing agents appearing under par. (a) or (b) shall promptly opt in or out upon any change in the identity of a filing agent. Mandatory users who do not opt in on a case will not receive notices of activity or service of documents.

809.801(3)(g) (g) Attorneys appearing under SCR 10.03 (4) shall register following court approval of a motion to appear pro hac vice.

809.801(3)(i) (i) Voluntary users who wish to opt out of a particular case shall use the “opt out” feature of the electronic filing system or notify the clerk of court. The electronic filing system shall indicate that traditional methods must be used for this party for future filings and service.

809.801(3)(j) (j) The electronic filing system may provide a method for filing documents by individuals who are not parties to the case. It may also provide a method for professionals and agencies associated with the case to receive information and file reports.

809.801(4) (4) Time and effect of electronic filing.

809.801(4)(a) (a) The electronic filing system is an agent of the appellate courts for purposes of filing, receipt, service, and retrieval of electronic documents. The electronic filing system shall receive electronic filings 24 hours per day except when undergoing maintenance or repair.

809.801(4)(am) (am) A document is considered filed on a particular day if the submission is completed by 11:59 p.m. central time, as recorded by the electronic filing system, so long as it is subsequently accepted by the clerk of court upon review. Documents filed after 11:59 p.m. are considered filed the next day the clerk’s office is open. The expanded availability of time to file shall not affect the calculation of time under other statutes, rules, and court orders. The electronic filing system shall issue a confirmation that submission to the electronic filing system is complete.

809.801(4)(b) (b) When a document is submitted by a user to the electronic filing system, the electronic filing system shall transmit it to the appropriate clerk of court. The clerk may review documents for compliance with rule requirements relating to form, including caption, case number, format, length, and confidentiality, to determine if the documents should be accepted for filing.

809.801(4)(c) (c) If the clerk of court accepts a document for filing, it shall be considered filed with the court at the date and time of the original submission, as recorded by the electronic filing system. The electronic filing system shall issue a notice of activity to serve as proof of filing. When personal service or traditional service is not required, the notice of activity shall constitute service on the other users in the case.

809.801(4)(cm) (cm) If the clerk rejects the document following review, the user shall receive notification of the rejection. The user may be required to resubmit the document.

809.801(5) (5) Commencement of action or proceeding; filing of initiating documents.

809.801(5)(a) (a) Original actions, writs, and other matters commenced in the appellate courts. A user seeking to initiate an action or proceeding in an appellate court under s. 757.85 (5), 809.51, 809.70, or 809.71 shall first register with the electronic filing system as provided in sub. (3). The user shall then file an initiating document in the appellate court and provide the additional information requested by the electronic filing system. At the written or oral request of the filer, the clerk of court may reject the document for filings made in error, if the request is made before the clerk of court has accepted the document. Initiating documents shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method.

809.801(5)(b) (b) Petitions for review and petitions to bypass. A user seeking review by the supreme court under s. 809.60 or 809.62 shall file an initiating document in the supreme court. At the written or oral request of the filer, the clerk may reject the document for filings made in error, if the request is made before the clerk has accepted the document. Service shall be as provided in s. 809.60 (1) (b) or s. 809.62 (1m) (a) 2.

809.801(5)(c) (c) Appeals from circuit court. A user seeking to initiate an appeal under s. 809.10, 809.103, 809.104, 809.105, 809.107, 809.109, 809.30, 809.32, or 809.40 shall file a notice of appeal in the circuit court case appealed from as provided in that section. The clerk of circuit court shall transmit the notice of appeal to the clerk of the court of appeals. The docketing statement, motions under s. 809.41 (1) or (4), and statement on transcript, where applicable, shall also be filed with the clerk of circuit court and transmitted to the clerk of the court of appeals. Service shall be as provided in s. 809.10 (1) (h).

809.801(5)(d) (d) Petitions for leave to appeal. A user seeking leave to appeal under s. 809.50 shall file a petition in the court of appeals and provide the additional information requested by the electronic filing system. At the written or oral request of the filer, the clerk of the court of appeals may reject the document for filings made in error, if the request is made before the clerk has accepted the document. Service shall be as provided in s. 809.50 (1m).