Rule (Motion for relief pending appeal).
A person seeking relief under s. 808.07
shall file a motion in the trial court unless it is impractical to seek relief in the trial court. A motion in the court must show why it was impractical to seek relief in the trial court or, if a motion had been filed in the trial court, the reasons given by the trial court for its action. A person aggrieved by an order of the trial court granting the relief requested may file a motion for relief from the order with the court. A judge of the court may issue an ex parte order granting temporary relief pending a ruling by the court on a motion filed pursuant to this rule. A motion filed in the court under this section must be filed in accordance with s. 809.14
Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390
A person who is not a party to an appeal may file in the court of appeals a petition to intervene in the appeal. A party may file a response to the petition within 11 days after service of the petition. The court may grant the petition upon a showing that the petitioner's interest meets the requirements of s. 803.09 (1)
, or (2m)
Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; 2017 a. 369
Judicial Council Committee's Note, 1978: Former s. 817.12 (6) permitted the addition of parties but did not set the criteria for doing so. This void is filled by making the intervention rule in the Rules of Civil Procedure applicable to proceedings in the Court of Appeals. [Re Order effective July 1, 1978]
Judicial Council Note, 2001: The 7-day time limit has been changed to 11 days. Please see the comment to s. 808.07 (6) concerning time limits. [Re Order No. 00-02 effective July 1, 2001]
A party who could have, but failed to, file a timely notice of appeal may not participate in the appeal as an intervenor or by filing a non-party brief. Weina v. Atlantic Mutual Insurance Co. 177 Wis. 2d 341
, 501 N.W.2d 465
(Ct. App. 1993).
A non-party to a circuit court action may intervene in an appeal brought by another party, even after the time for filing a notice of appeal has passed. City of Madison v. WERC, 2000 WI 39
, 234 Wis. 2d 550
, 610 N.W.2d 94
A party seeking an order or other relief in a case shall file a motion for the order or other relief. The motion must state the order or relief sought and the grounds on which the motion is based and may include a statement of the position of other parties as to the granting of the motion. A motion may be supported by a memorandum. Except as provided in sub. (1m)
, any other party may file a response to the motion within 11 days after service of the motion.
If a motion is filed in an appeal under s. 809.107
, any other party may file a response to the motion within 5 days after service of the motion.
A motion for a procedural order may be acted upon without a response to the motion. A party adversely affected by a procedural order entered without having had the opportunity to respond to the motion may move for reconsideration of the order within 11 days after service of the order.
The filing of a motion seeking an order or other relief which may affect the disposition of an appeal or the content of a brief, or a motion seeking consolidation of appeals, automatically tolls the time for performing an act required by these rules from the date the motion was filed until the date the motion is disposed of by order.
The filing of a motion to supplement or correct the record automatically tolls the time for performing an act required by these rules from the date the motion was filed until the date the motion is disposed of by order. If a motion to correct or supplement the record is granted, time limits for performing an act required by these rules shall be tolled from the date on which the motion was filed until the date on which the supplemental or corrected record return is filed, except that the time for preparation of supplemental or corrected transcripts is governed by s. 809.11 (7) (a)
The moving party shall serve the clerk of circuit court with any motion filed in the court of appeals under this subsection.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii; 1991 a. 263
; 1995 a. 224
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 05-07
, 2006 WI 37, 287 Wis. 2d xix.
Judicial Council Committee's Note, 1978: The motion procedure under former Rule 251.71 is continued except that the time for replying to a motion is reduced from 10 to 7 days. A response is not required before action can be taken on a procedural motion because these motions include matters previously handled by letter request or which usually do not adversely affect the opposing party. If an opposing party is adversely affected by a procedural order, he has the right to request the court to reconsider it. Procedural orders include the granting of requests for enlargement of time, to file an amicus brief, or to file a brief in excess of the maximum established by the rules. This section is based on Federal Rules of Appellate Procedure, Rule 27. Sub. (3) modifies the prior practice under which the filing of any motion stayed any due date until 20 days after the motion was decided. This could result in an unintentional shortening of the time in which a brief had to be filed. It could also result in an unnecessary delay if a ruling on the motion would not affect the outcome of the case, the issues to be presented to the court, or a brief or the record. [Re Order effective July 1, 1978]
Judicial Council Committee's Note, 1979: Sub. (1) is amended by deleting a provision that required only an original and one copy of a motion be filed with an appellate court. With the amendment, the number of copies of a motion to be filed is now governed by 809.81 on the form of papers to be filed with an appellate court, which requires in sub. (2) that 4 copies of a paper be filed with the Court of Appeals and 8 copies with the Supreme Court. [Re Order effective Jan. 1, 1979]
Judicial Council Note, 2001: The 7-day time limits in subs. (1) and (2) have been changed to 11 days. Please see the comment to s. 808.07 (6) concerning time limits. Subsection (3) (a) was revised to include consolidation motions within the tolling provision. Subsection (3) (b) creates a tolling provision when a motion to supplement or correct the record is filed. Subsection (3) (c) creates a service requirement for motions affecting the time limits for transmittal of the record. [Re Order No. 00-02 effective July 1, 2001]
Judicial Council Note, 2006: The amendment to s. 809.14 (1) and the creation of s. 809.14 (1m) to establish a shorter response time to appellate motions should advance the ultimate resolution of TPR appeals. [Re Order No. 05-07 effective July 1, 2006]
A motion to dismiss an appeal under sub. (3) does not extend the time for filing a cross-appeal. Rossmiller v. Rossmiller, 151 Wis. 2d 386
, 444 N.W.2d 445
(Ct. App. 1989).
Rule (Record on appeal). 809.15(1)(a)(a)
The record on appeal consists of the following unless the parties stipulate to the contrary:
The initiating document by which the action or proceeding was commenced;
Verdict, or findings of the court, and order based thereon;
Order made after judgment relevant to the appeal and documents upon which the order is based;
Exhibits whether or not received in evidence, including photographs, video recordings, audio recordings, and computer media such as discs or flash drives, except that physical evidence, models, charts, diagrams, and photographs exceeding 8.5 x 11 inches in size shall not be included unless requested by a party to be included in the record;
Any other document filed in the court requested by a party to be included in the record;
The clerk of the circuit court may request by letter permission of the court to substitute a photocopy for the actual paper or exhibit filed in the circuit court. A photocopy does not include a document that the clerk of the circuit court has electronically scanned into the court record as permitted under SCR 72.05
For purposes of preparing the record on appeal, if the original record has been discarded as permitted under SCR 72.03
(3), the electronically scanned document constitutes the official court record.
Compilation and approval of the record.
The clerk of circuit court shall assemble the record in the order set forth in sub. (1) (a)
, identify by number, date of filing, and title each document, and prepare a list of the numbered documents. If the record is in an electronic format, the clerk shall also include in the list of numbered documents a list of exhibits not electronically maintained that are part of the record on appeal. At least 10 days before the due date for filing the record in the court, the clerk of the circuit court shall notify in writing each party appearing in the circuit court that the record has been assembled and is available for inspection. The clerk of the circuit court shall include with the notice the list of the documents constituting the record.
A party who believes that the record, including the transcript of the court reporter's verbatim record, is defective or that the record does not accurately reflect what occurred in the circuit court may move the court in which the record is located to supplement or correct the record. Motions under this subsection may be heard under s. 807.13
809.15(4)(a)(a) Transmittal of the record.
The clerk of the circuit court shall transmit the record to the court of appeals within 20 days after the date of the filing of the transcript designated in the statement on transcript or within 20 days after the date of the filing of a statement on transcript indicating that no transcript is necessary for prosecution of the appeal, unless the court extends the time for transmittal of the record or unless the tolling provisions of s. 809.14 (3)
extend the time for transmittal of the record. If additional portions of the transcript are requested under s. 809.11 (5)
, the clerk of the circuit court shall transmit the record to the court of appeals within 20 days after the date of the filing of the additional portions of the transcript. If the record is transmitted electronically, the clerk of the circuit court shall transmit by traditional methods any original documents or exhibits not electronically maintained.
(b) Late transcript.
If the reporter fails to file the transcript within the time limit specified in the statement on transcript, the clerk of circuit court shall transmit the record not more than 90 days after the filing of the notice of appeal, unless the court of appeals extends the time for filing the transcript of the court reporter's verbatim record. If the court extends the time for filing the transcript of the court reporter's verbatim record, the clerk of circuit court shall transmit the record within 20 days after the date that the transcript is filed.
(c) Supplementation or correction of record.
Notwithstanding pars. (a)
, if a motion to supplement or correct the record is filed in circuit court, the clerk of circuit court may not transmit the record until the motion is determined. A copy of any motion to supplement or correct the record that is filed in circuit court shall be sent to the clerk of the court of appeals. The circuit court shall determine, by order, the motion to supplement or correct the record within 14 days after the filing or the motion is considered to be denied and the clerk of circuit court shall immediately enter an order denying the motion and shall transmit the record to the court of appeals within 20 days after entry of the order. If the circuit court grants the motion, the clerk of circuit court shall transmit the supplemented or corrected record to the court of appeals within 20 days after entry of the order or filing of the supplemental or corrected record in the circuit court, whichever is later.
Notice of filing of record.
The clerk of the court of appeals shall notify the clerk of circuit court and all parties appearing in the circuit court of the date on which the record was filed. When the record is transmitted electronically and the clerk of the circuit court must transmit original documents or exhibits not electronically maintained by traditional methods, the date on which the record was filed is the date the electronic transmission and index was received by the clerk of the court of appeals.
Agreed statement in lieu of record.
The parties may file in the court within the time prescribed by sub. (4)
an agreed statement of the case in lieu of the record on appeal. The statement must:
Show how the issues presented by the appeal arose and were decided by the trial court; and
Recite sufficient facts proved or sought to be proved as are essential to a resolution of the issues presented.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 403
; 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; Sup. Ct. Order No. 12-05
, 2012 WI 112, 344 Wis. 2d xxxiii; Sup. Ct. Order No. 15-02
, 2015 WI 102, 365 Wis. 2d xix; 2017 a. 365
; Sup. Ct. Order No. 19-01
, 2019 WI 44, 386 Wis. 2d xvii.
Judicial Council Committee's Note, 1978: Sub. (1) substantially embodies former s. 251.25. It also permits the filing of a photocopy instead of the original record but only with the approval of the Court of Appeals, changing to some extent prior Rules 251.25 (13) and 251.27. Under this section the parties can stipulate to exclude some items from the record, but this should be done before the clerk assembles the record.
Sub. (2). The responsibility for having the record assembled and transmitted to the Court of Appeals is transferred from the appellant to the clerk of the trial court. It is not necessary to have the attorneys present at the pagination of the record. The federal procedure set forth in Rule 11 (b), FRAP, under which the clerk assembles the record and then notifies the parties so that they can inspect the record prior to it being sent to the Court of Appeals is adopted. Also adopted is the federal procedure of the clerk preparing a list of all the papers in the record. The former system of numbering each page in the record consecutively is abandoned for the simpler practice of assigning a letter or number to each document and using its internal page reference. Thus, the reference to the third page of the first document would be A-3 and to the fifth page of the second document B-5.
Sub. (3). This provision replaces former Rule 251.30 and s. 817.117.
Subs. (4) and (5). The provisions of former Rules 251.29 and 251.28 are included in these subsections. [Re Order effective July 1, 1978]
Judicial Council Committee's Note, 1981: Sub. (4) is amended to provide for an expedited transmittal of the record for appeals in which a transcript is not necessary for prosecution of the appeal or a transcript is filed in less than the maximum time period permitted by ch. 809. [Re: Order effective Jan. 1, 1982]
Judicial Council Note, 1988: Sub. (3) is amended to allow motions to correct the record to be heard by telephone conference. [Re: Order effective Jan. 1, 1988]
Judicial Council Note, 2001: Subsection (2) requires that numbers be used to identify the contents of the record. Subsection (4) (a) recreates the general rule for record transmittal from former sub. (4). Exceptions to the general rule are set forth in subs. (4) (b) and (c). Subsection (4m) recreates the last sentence of former sub. (4). [Re: Order No. 00-02 effective July 1, 2001]
Sup. Ct. Order No. 15-02
states: The Comments to Wis. Stat. ss. 809.105 (3) and 809.15 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.
Comment, 2015: Effective July 1, 2016, the Wisconsin Supreme Court amended the Rules of Appellate Procedure to permit the clerk of circuit court to transmit the record to the appellate court electronically. The amendment applies to record transmittals due on or after July 1, 2016. [Re: Order No. 15-02 effective July 1, 2016]
An appellant's failure to file a motion under sub. (3) did not constitute waiver of the right to challenge the adequacy of the transcript. State v. Perry, 136 Wis. 2d 92
, 401 N.W.2d 748
It is the appellant's responsibility to assure that the record is complete. If the record is incomplete, it is assumed that the missing material supports the trial court's ruling. Fiumefreddo v. McLean, 174 Wis. 2d 10
, 496 N.W.2d 226
(Ct. App. 1993).
Rule (Expedited appeals program, voluntary alternative dispute resolution and presubmission conference). 809.17(1)(1)
In order to minimize appellate delay and reduce its backlog, the court of appeals may develop an expedited appeals program. The program may involve mandatory completion of docketing statements by appellant's counsel and participation in presubmission conferences at the direction of the court, but participation in the court's accelerated briefing and decision process is voluntary. The rules and procedures governing the program shall be set forth in the court of appeals' internal operating procedures.
The court of appeals may require all attorneys of record in any appeal to participate in a presubmission conference, either by telephone or in person, with an officer of the court. An attorney of record with no direct briefing interest in the appeal may waive his or her participation in the conference by written notice to the court.
The court of appeals may establish an appellate mediation program and make and enforce all rules necessary for the prompt and orderly dispatch of the business of the program. Participation in the appellate mediation program is voluntary, but the program may involve mandatory participation in the presubmission conferences at the direction of the court. Only those cases in which a docketing statement is required to be filed under s. 809.10 (1) (a)
are eligible for participation in the appellate mediation program. The parties to the appeal shall pay the fees of a mediator providing services under the program, unless those fees are waived or deferred by the court. The rules and procedures governing the program shall be set forth in the court of appeals' internal operating procedures.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 131 Wis. 2d xvi (1986); Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii.
Court of Appeals Note, 1986: Section (Rule) 809.17 is repealed and recreated to give the court of appeals authority to administer its expedited appeals program pursuant to Section VII, Expedited Appeals, of the Court of Appeals Internal Operating Procedures (amended 1986). The rule replaces a similar delegation of authority to the chief judge of the court of appeals by order of the supreme court dated December 19, 1983. [Re Order effective January 1, 1987]
Rule (Voluntary dismissal). 809.18(1)(1)
An appellant may dismiss a filed appeal by filing a notice of dismissal in the court or, if the appeal is not yet filed, in the circuit court. The dismissal of an appeal by the appellant or by agreement of the parties or their counsel does not affect the status of a lower court decision, the status of a cross-appeal, or the right of a respondent to file a cross-appeal.
If the parties compromise or otherwise settle the entire matter in litigation prior to the issuance of the decision of the court of appeals, the appellant shall immediately inform the court in writing, signed by all parties, that the matter has been compromised or settled. Upon receipt of such information, the court shall dismiss the appeal in accordance with sub. (1)
Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1995 a. 224
; Sup. Ct. Order No. 01-15
, 2003 WI 94, 261 Wis. 2d xxxvii; Sup. Ct. Order No. 07-15
, 2008 WI 27, filed 4-2-08, eff. 7-1-08.
Judicial Council Committee's Note, 1978: An appeal may be dismissed by the appellant at any time prior to a court decision on the appeal without approval of the court or the respondent. This changes the former procedure and modifies Rule 42, FRAP. The Rule specifically protects a respondent who has or intends to file a cross-appeal, and for this reason the appellant is authorized to dismiss the appeal at will. The filing of a notice of dismissal does not affect the liability of the appellant for costs or fees, or the power of the court to impose penalties under Rule 809.83 (1). [Re Order effective July 1, 1978]
This section does not require the dismissal of a petition for a supervisory writ upon the filing of a notice of voluntary dismissal. A petition for a supervisory writ is not an “appeal." Interest of Peter B. 184 Wis. 2d 57
, 616 N.W.2d 746
(Ct. App. 1994).
The court of appeals must dismiss an appeal when an appellant files a notice of voluntary dismissal before the court issues its decision on the appeal. State v. Lee, 197 Wis. 2d 960
, 542 N.W.2d 143
The date stamped on a court of appeals decision or order is the date it is issued and filed. That the clerk's office mails appellate decisions to the parties the day before they are dated and filed does not mean that decisions are to be deemed to have been issued on the mailing date. A notice of voluntary dismissal filed on the day prior to an opinion being issued operates to automatically dismiss the appeal. State v. Jones, 2002 WI 53
, 252 Wis. 2d 592
, 645 N.W.2d 610
Rule (Briefs and appendix). 809.19(1)(1)
Brief of appellant.
The appellant shall file a brief within 40 days of the filing in the court of the record on appeal. The brief must contain:
A table of contents with page references of the various portions of the brief, including headings of each section of the argument, and a table of cases arranged alphabetically, statutes and other authorities cited with reference to the pages of the brief on which they are cited.
A statement of the issues presented for review and how the trial court decided them.
A statement with reasons as to whether oral argument is necessary and a statement as to whether the opinion should be published and, if so, the reasons therefor.
A statement of the case, which must include: a description of the nature of the case; the procedural status of the case leading up to the appeal; the disposition in the trial court; and a statement of facts relevant to the issues presented for review, with appropriate references to the record.
An argument, arranged in the order of the statement of issues presented. The argument on each issue must be preceded by a one sentence summary of the argument and is to contain the contention of the appellant, the reasons therefor, with citations to the authorities, statutes and parts of the record relied on as set forth in the Uniform System of Citation and SCR 80.02
A short conclusion stating the precise relief sought.
Reference to an individual by one or more initials or other appropriate pseudonym or designation rather than by his or her full name when the record is required by law to be confidential.
The signature of the attorney who files the brief; or, if the party who files the brief is not represented by an attorney, the signature of that party. If the brief was prepared with the drafting assistance of an attorney under s. 802.05 (2m)
, the brief must contain a statement that “This document was prepared with the assistance of a lawyer."
Reference to the parties by name, rather than by party designation, throughout the argument section.