Chapter 809

809.19 Note Sub. (8) (a) provides that electronic filing users no longer need to file multiple paper copies of briefs with the court. A notice of activity to users is generated when the clerk enters the brief into the court record, allowing the other electronic parties to access the brief electronically. Paper parties file one paper copy of each brief and appendix with the court, which the clerk will scan and make part of the record.

809.19 Note Sub. (8) (b) makes a number of changes to form, while maintaining the overall appearance of the documents. Standards for handwritten briefs have been added, along with a statement of the court’s authority to review briefs for legibility. Margins are required so that scanned documents will include all the words.

809.19 Note Sub. (8) (bm) requires pagination using Arabic numerals beginning on the first page of each document. This will match the page number to the page header applied by the eFiling system, avoiding the confusion of having two different page numbers.

809.19 Note Sub. (8) (c) is reorganized to clarify allowable page counts and word limits for the various kinds of briefs. Page limits specific to handwritten briefs have been added, based on the average number of words per page found in handwritten briefs currently on file.

809.19 Note Sub. (8g) addresses certification of the brief, appendix, and supplemental appendix in a single section. The language of the certifications for brief and appendix is largely unchanged. Certifications may be combined into a single document for signature. Electronic filing users may certify using their electronic signatures.

809.19 Annotation Appellate counsel’s appendix containing only a copy of the judgment of conviction, a notice of motion and motion to suppress, and a notice of intent to pursue postconviction relief did not meet the standard under sub. (2) (a) to contain items “essential to an understanding of the issues raised.” When counsel certified that the essential items were in the appendix when they were not, the certification was false and counsel was subject to sanction. State v. Bons, 2007 WI App 124, 301 Wis. 2d 227, 731 N.W.2d 367, 06-1625.

809.19 Annotation When the court of appeals is considering imposing a sanction on an attorney for filing a brief with a deficient appendix, an order to show cause should be issued directing counsel to explain why a violation of sub. (2) (a) and (b) should not be found and why the attorney should not pay a monetary penalty for failing to include in the appendix portions of the record that may have been essential to an understanding of the issue in the case and for filing a false certification. The order to show cause should state that alternatively, the attorney may pay the amount of money stated in the order within 30 days of the date of the order without showing cause why the attorney should not be relieved of this obligation. State v. Nielsen, 2011 WI 94, 337 Wis. 2d 302, 805 N.W.2d 353, 10-0387.

809.19 Annotation The page length limits in sub. (8) apply in original jurisdiction actions. Watts v. Thompson, 116 F.3d 220 (1997).

809.20 809.20 Rule (Assignment and advancement of cases). The court may take cases under submission in such order and upon such notice as it determines. A party may file a motion to advance the submission of a case either before or after the briefs have been filed. The motion should recite the nature of the public or private interest involved, the issues in the case and how delay in submission will be prejudicial to the accomplishment of justice.

809.20 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).

809.20 Note Judicial Council Committee’s Note, 1978: This rule incorporates the present unwritten procedure for having the submission of a case advanced. It also specifies the factors that may affect the advancement of a case. [Re Order effective July 1, 1978]

809.21 809.21 Rule (Summary disposition).

809.21(1) (1) The court upon its own motion or upon the motion of a party may dispose of an appeal summarily.

809.21(2) (2) A party may file at any time a motion for summary disposition of an appeal. Section 809.14 governs the procedure on the motion.

809.21 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390 s. 252.

809.21 Note Judicial Council Committee’s Note, 1978: The basic concept in former Rule 251.54 of allowing the Supreme Court to dispose of appeals summarily is continued, but Rule 809.21 specifically authorizes a motion for this purpose. Such a motion was often used under prior procedure, but the rules did not expressly authorize it. [Re Order effective July 1, 1978]

809.22 809.22 Rule (Oral argument).

809.22(1) (1) The court shall determine whether a case is to be submitted with oral argument or on briefs only.

809.22(2) (2) The court may direct that an appeal be submitted on briefs only if:

809.22(2)(a) (a) The arguments of the appellant:

809.22(2)(a)1. 1. Are plainly contrary to relevant legal authority that appear to be sound and are not significantly challenged;

809.22(2)(a)2. 2. Are on their face without merit and for which no supporting authority is cited or discovered; or

809.22(2)(a)3. 3. Involve solely questions of fact and the fact findings are clearly supported by sufficient evidence; or

809.22(2)(b) (b) The briefs fully present and meet the issues on appeal and fully develop the theories and legal authorities on each side so that oral argument would be of such marginal value that it does not justify the additional expenditure of court time or cost to the litigant.

809.22(3) (3) The court shall determine the amount of time for oral argument allowed to each party in a case either by general or special order.

809.22(4) (4) On motion of any party or its own motion, the court may order that oral argument be heard by telephone.

809.22 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 141 Wis. 2d xiii (1987).

809.22 Note Judicial Council Committee’s Note, 1978: The Supreme Court has for a number of years scheduled some cases for submission on briefs only without oral argument in an effort to accommodate its burgeoning caseload. The criteria by which the court decides whether a case is to have oral argument have never been formally adopted. This rule is a statement of those criteria. Counsel should address these criteria in their briefs in discussing the question of the need for oral argument. See Rule 809.19 (1) (c). Flexibility is provided by sub. (3) as to the length of oral argument in order to meet the needs of an individual case. It may be appropriate, for example, to have an oral argument for the sole purpose of allowing the court to ask questions of counsel. [Re Order effective July 1, 1978]

809.22 Note Judicial Council Note, 1988: Sub. (4) [created] authorizes oral arguments to be heard by telephone conference on motion of any party or the court of appeals. [Re Order effective Jan. 1, 1988]

809.23 809.23 Rule (Publication of opinions).

809.23(1) (1) Criteria for publication.

809.23(1)(a) (a) While neither controlling nor fully measuring the court’s discretion, criteria for publication in the official reports of an opinion of the court include whether the opinion:

809.23(1)(a)1. 1. Enunciates a new rule of law or modifies, clarifies or criticizes an existing rule;

809.23(1)(a)2. 2. Applies an established rule of law to a factual situation significantly different from that in published opinions;

809.23(1)(a)3. 3. Resolves or identifies a conflict between prior decisions;

809.23(1)(a)4. 4. Contributes to the legal literature by collecting case law or reciting legislative history; or

809.23(1)(a)5. 5. Decides a case of substantial and continuing public interest.

809.23(1)(b) (b) An opinion should not be published when:

809.23(1)(b)1. 1. The issues involve no more than the application of well-settled rules of law to a recurring fact situation;

809.23(1)(b)2. 2. The issue asserted is whether the evidence is sufficient to support the judgment and the briefs show the evidence is sufficient;

809.23(1)(b)3. 3. The issues are decided on the basis of controlling precedent and no reason appears for questioning or qualifying the precedent;

809.23(1)(b)4. 4. The decision is by one court of appeals judge under s. 752.31 (2) and (3);

809.23(1)(b)5. 5. It is a per curiam opinion on issues other than appellate jurisdiction or procedure;

809.23(1)(b)6. 6. It has no significant value as precedent.

809.23(2) (2) Decision on publication. The judges of the court of appeals who join in an opinion in an appeal or other proceeding shall make a recommendation on whether the opinion should be published. A committee composed of the chief judge or a judge of the court of appeals designated by the chief judge and one judge from each district of the court of appeals selected by the court of appeals judges of each district shall determine whether an opinion is to be published.

809.23(3) (3) Citation of unpublished opinions.

809.23(3)(a) (a) An unpublished opinion may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case, and except as provided in par. (b).

809.23(3)(b) (b) In addition to the purposes specified in par. (a), an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under s. 752.31 (2) may be cited for its persuasive value. A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it.

809.23(3)(c) (c) A party citing an unpublished opinion shall file and serve a copy of the opinion with the brief or other paper in which the opinion is cited.

809.23(4) (4) Request for publication.

809.23(4)(a) (a) Except as provided in par. (b), any person may at any time file a request that an opinion not recommended for publication or an unreported opinion be published in the official reports.

809.23(4)(b) (b) No request may be made for the publication of an opinion that is a decision by one court of appeals judge under s. 752.31 (2) and (3) or that is a per curiam opinion on issues other than appellate jurisdiction or procedure.

809.23(4)(c) (c) A person may request that a per curiam opinion that does not address issues of appellate jurisdiction or procedure be withdrawn, authored and recommended for publication. That request shall be filed within 20 days of the date of the opinion and shall be decided by the panel that decided the appeal.

809.23(4)(d) (d) A copy of any request made under this subsection shall be served on the parties to the appeal or other proceeding in which the opinion was filed. A party to the appeal or proceeding may file a response to the request within 5 days after the request is filed.

809.23 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii; 1981 c. 390 s. 252; Sup. Ct. Order, 109 Wis. 2d xiii (1982); Sup. Ct. Order, 118 Wis. 2d xiii (1984); 1991 a. 189, Sup. Ct. Order No. 96-10, 208 Wis. 2d xiii (1997), Sup. Ct. Order No. 01-04, 2001 WI 135, 248 Wis. 2d xvii; Sup. Ct. Order No. 08-02, 2009 WI 2, 311 Wis. 2d xxv; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.23 Note Judicial Council Committee’s Note, 1978: As with Rule 809.22 on oral argument, a former practice of the Supreme Court is written into this Rule and formal criteria established for it. The trend toward nonpublication of opinions is nationwide and results from the explosion of appellate court opinions being written and published. Many studies of the problem have concluded that unless the number of opinions published each year is reduced legal research will become inordinately time-consuming and expensive. Some argue that even accepting the premise that a court may properly decide not to publish an opinion this should not prevent that opinion from being cited as precedent since in common law practice any decision of a court is by its nature precedent. Others argue that a court may try to hide what it is doing in a particular case by preventing the publication of the opinion in the case.

809.23 Note There are several reasons why an unpublished opinion should not be cited: (1) The type of opinion written for the benefit of the parties is different from an opinion written for publication and often should not be published without substantial revision; (2) If unpublished opinions could be cited, services that publish only unpublished opinions would soon develop forcing the treatment of unpublished opinions in the same manner as published opinions thereby defeating the purpose of nonpublication; (3) Permitting the citation of unpublished opinions gives an advantage to a person who knows about the case over one who does not; (4) An unpublished opinion is not new authority but only a repeated application of a settled rule of law for which there is ample published authority.

809.23 Note If it is desirable to reduce the number of published opinions, the only alternative to having some opinions unpublished is to decide cases without written opinions. This would be far worse because it would compound the problems of nonpublication and at the same time take away from the parties the benefit of a written opinion.

809.23 Note Section 752.41 (3) authorizes the Supreme Court to establish by rule the procedure under which the Court of Appeals decides which of its opinions are to be published. Sub. (1) provides for a committee of judges of the Court of Appeals to make this decision.

809.23 Note As a safeguard against any mistakes as to nonpublication, sub. (4) adopts the procedure of the United States Court of Appeals for the Seventh Circuit in permitting a person to request that an unpublished opinion be published. [Re Order effective July 1, 1978]

809.23 Note Judicial Council Committee’s Note, 1979: Sub. (4) is amended to delete the prior requirement that a motion had to be filed in order to ask the Court of Appeals to have one of its unreported opinions published in the official reports of the Court of Appeals. Requiring a motion to be filed led to confusion in some instances because the person requesting the opinion to be published may not be a party to the appeal decided by the opinion and uncertainty can occur as to who should be served with a copy of the motion and given an opportunity to respond. The requirement to file a motion has been replaced by the need to simply make a request to the Court of Appeals for publication of an unreported opinion. [Re Order effective Jan. 1, 1980]

809.23 Note Court of Appeals Note, 1997: A request under this paragraph [sub. (4) (c)] does not affect the time under sec. (Rule) 809.62 for filing a petition for review. As in the case of reconsideration of a Court of Appeals decision or opinion, withdrawal of an opinion renders that opinion a nullity. Accordingly, a petition for review of that opinion filed prior to its withdrawal is of no effect, except that the petitioner may incorporate it by reference in a petition for review of the opinion subsequently issued in the appeal or proceeding.

809.23 Note Court of Appeals Note, 1997: The Court of Appeals recognizes that many of its opinions are issued as per curiam opinions that should not be published under sec. (Rule) 809.23 (1) (b) 5., Stats. This amendment [of sub. (4)] establishes a procedure whereby a person may request that a per curiam opinion be withdrawn, authored and recommended for publication. The amendment also expressly states that an opinion issued by a single judge of the Court of Appeals under s. 752.31 (2) and (3), Stats., will not be published.

809.23 Note Judicial Council Note, 2008: Subsection (3) was revised to reflect that unpublished Wisconsin appellate opinions are increasingly available in electronic form. This change also conforms to the practice in numerous other jurisdictions, and is compatible with, though more limited than, Fed. R. App. P. 32.1, which abolished any restriction on the citation of unpublished federal court opinions, judgments, orders, and dispositions issued on or after January 1, 2007. The revision to Section (3) does not alter the non-precedential nature of unpublished Wisconsin appellate opinions.

809.23 Annotation Citing an unpublished opinion of the court of appeals subjected the attorney to a $50 fine. Tamminen v. Aetna Casualty & Surety Co., 109 Wis. 2d 536, 327 N.W.2d 55 (1982).

809.23 Annotation Sub. (3) does not ban citation to circuit court opinions. Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991).

809.23 Annotation Citation to an unpublished court of appeals decision to show a conflict between districts for purposes of s. 809.62 (1) (d) is appropriate. State v. Higginbotham, 162 Wis. 2d 978, 471 N.W.2d 24 (1991).

809.23 Annotation A party’s invitation to the court of appeals to consider an unpublished opinion, or even a naked citation to it, violates the letter and spirit of sub. (3). Kuhn v. Allstate Insurance Co., 181 Wis. 2d 453, 510 N.W.2d 826 (Ct. App. 1993).

809.23 Annotation Only the supreme court has the power to overrule, modify, or withdraw language from a published opinion of the court of appeals. Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997), 95-1963.

809.23 Annotation The rule against citing unpublished cases is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration. Unless and until the nonpublication rule is changed, violations of this rule will not be tolerated. State v. Milanes, 2006 WI App 259, 297 Wis. 2d 684, 727 N.W.2d 94, 06-0014.

809.23 Annotation The Noncitation Rule and the Concept of Stare Decisis. Walther. 61 MLR 581 (1978).

809.23 Annotation Publication of court of appeals’ opinions. Scott. WBB July 1988.

809.23 Annotation Citing Unpublished Opinions in Wisconsin State and Federal Tribunals. Sefarbi & Zaporski. Wis. Law. Nov. 2004.

809.24 809.24 Rule (Reconsideration).

809.24(1) (1) Except as provided in sub. (4), a party may file a motion for reconsideration in the court of appeals within 20 days after the date of a decision issued pursuant to s. 752.41 (1). The motion must state with particularity the points of law or fact alleged to be erroneously decided in the decision and must include supporting argument. No separate memorandum in support of the motion is permitted unless subsequently ordered by the court. The court may order a response before issuing an amended decision. No response to the motion is permitted unless ordered by the court. The motion and any response shall not exceed 5 pages if a monospaced font or handwriting is used, or 1,100 words if a proportional serif font is used.

809.24(2) (2) In response to a motion for reconsideration, the court shall issue an amended decision or the court shall issue an order denying the motion.

809.24(3) (3) Nothing in this section prohibits the court from reconsidering a decision on its own motion at any time prior to remittitur if no petition for review is filed under s. 809.62 or, if a petition for review is filed, within 30 days after filing the petition for review.

809.24(4) (4) No motion for reconsideration of a court of appeals decision issued under s. 809.105 or 809.107 is permitted.

809.24 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. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii; 2009 a. 25; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.24 Note Judicial Council Committee’s Note, 1981: Rule 809.24 is amended to refer properly to the petition for supreme court review of decisions of the court of appeals. The rule has been redrafted stylistically. No substantive change is intended. [Re Order effective Jan. 1, 1982]

809.24 Note Judicial Council Note, 2001: Section 809.24 is amended to conform with the court of appeals’ internal operating procedures, and to provide an orderly procedure for reconsideration. Reconsideration is intended for those rare cases in which the court of appeals overlooks or misapprehends relevant and material facts or law, not for cases in which a party simply disagrees with the court of appeals. Presentation of new facts or alternate legal arguments is not appropriate on reconsideration. Reconsideration is not permitted in s. 809.105 proceedings related to parental consent prior to performance of abortion due to the abbreviated appellate time periods provided in s. 809.105. Service requirements of s. 801.14 (4) apply. The time for filing a motion for reconsideration cannot be extended. See s. 809.82 (2) (e). [Re Order No. 00-02 effective July 1, 2001]

809.24 Note Judicial Council Note, 2002: The reference to an “order” of the court of appeals is deleted. Prior to 2001 WI 39, s. 809.24 applied to a “decision” of the court. To clarify that a summary disposition order was subject to reconsideration under s. 809.24, a reference to “order” was added by 2001 WI 39. That amendment created confusion as to whether procedural orders issued by the court during the pendency of an appeal could be reconsidered under s. 809.24. However, reconsideration of procedural orders is available under s. 809.14. To eliminate the confusion created by 2001 WI 39, a reference to s. 752.41 (1) was added and “order” was deleted. See In Interest of A.R., 85 Wis. 2d 444, 446, 270 N.W.2d 581 (1978) (“decision” as used in s. 752.41 (1) is the final decision disposing of the appeal).

809.24 Note The amendment also eliminates the requirement that the court of appeals order a response to a motion for reconsideration prior to amending a decision. Often a motion for reconsideration will bring the court’s attention to a minor factual misstatement that may be corrected without the benefit of a response. The court of appeals retains the option to order that a response be filed, if it determines that a response will assist the court. [Re Order No. 02-01 effective January 1, 2003.]

809.25 809.25 Rule (Costs and fees).

809.25(1) (1) Costs.

809.25(1)(a) (a) Costs in a civil appeal are allowed as follows unless otherwise ordered by the court:

809.25(1)(a)1. 1. Against the appellant before the court of appeals when the appeal is dismissed or the judgment or order affirmed.

809.25(1)(a)2. 2. Against the respondent before the court of appeals when the judgment or order is reversed.

809.25(1)(a)3. 3. Against the petitioner before the supreme court when the judgment of the court of appeals is affirmed by the supreme court.