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.
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.
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.
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
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.
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]
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
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."
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.
Rule (Form of papers).
A paper filed in the court must conform to the following requirements unless expressly provided otherwise in these rules:
(2) Number of copies.
Five copies in the court of appeals, 9 copies in the supreme court, and 3 copies of a motion filed under s. 809.14
in the court of appeals if the appeal or other proceeding is one of the types of cases specified in s. 752.31 (2)
Produced using either a monospaced or a proportional serif font.
(4) Spacing and margins.
Double-spaced with a minimum of a 1.5 inch margin on each of the 4 sides.
Paginated at the center of the bottom margin.
(6) Copying process.
Any duplicating or copying process that produces a clear, black image on white paper. Carbon copies may not be filed.
Bound or stapled at the top margin.
Every notice of appeal or other document that is filed in the court and that is required by law to be confidential shall refer to individuals only by one or more initials or other appropriate pseudonym or designation.
Except as provided in s. 809.81 (8)
, the caption of any document shall include the full name of each party in the circuit court and shall designate each party so as to identify each party's status in the circuit court and in the appellate court, if any. In the supreme court, “petitioner" shall be added to the designation of a party filing a petition for review. The designation of a party responding to a petition for review shall remain the same as in the court of appeals.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order No. 93-18
, 179 Wis. 2d xxi (1993); Sup. Ct. Order No. 93-20
, 179 Wis. 2d xxv (1993); 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. 14-01
, 2015 WI 21, filed 3-2-15, eff. 7-1-15.
Judicial Council Committee's Note, 1978: The 8-1/2 x 11 letter size paper is adopted as the standard size for all papers to be filed in the Court of Appeals in place of using both 8-1/2 x 14 and 8-1/2 by 11. A standard size paper simplifies records management. There is a national trend away from legal size paper. [Re Order effective July 1, 1978]
Judicial Council Committee's Note, 1981: Sub. (2) is amended to clarify that an original must be filed with the 4 copies in the court of appeals or with the 8 copies in the supreme court. [Re Order effective Jan. 1, 1982]
Judicial Council Note, 2001: Subsection (2) was amended to eliminate the distinction between “original" and “copy," because current technology produces copies of quality as good as the original. Subsection (8) requires that only the first name and last initial be used in all documents in confidential cases. [Re Order No. 00-02 effective July 1, 2001]
Judicial Council Note, 2002: Subsection (9) is created to clarify that the same caption should be used on all documents filed in an appellate case, and specifies that caption. Captions on pleadings and other documents filed pursuant to this rule are consistent with the current s. 809.19 (9) requirement governing captions on briefs. [Re Order No. 02-01 effective January 1, 2003]
Rule (Computation and enlargement of time). 809.82(1)(1)
In computing any period of time prescribed by these rules, the provisions of s. 801.15 (1)
(2) Enlargement or reduction of time. 809.82(2)(a)(a)
Except as provided in this subsection, the court upon its own motion or upon good cause shown by motion, may enlarge or reduce the time prescribed by these rules or court order for doing any act, or waive or permit an act to be done after the expiration of the prescribed time.
Notwithstanding par. (a)
, the time for filing a notice of appeal or cross-appeal of a final judgment or order, other than in an appeal under s. 809.107
or an appeal under s. 809.30
, may not be enlarged.
The court may not enlarge the time prescribed for an appeal under s. 809.105
without the consent of the minor and her counsel.
A copy of any motion to enlarge time limits under this subsection shall be served on the clerk of circuit court.
Notwithstanding par. (a)
, the time for filing a motion for reconsideration under s. 809.24
may not be enlarged.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390
; 1991 a. 263
; 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. 293
; 2017 a. 258
Judicial Council Committee's Note, 1978: Sub. (1). The provisions of the Rules of Civil Procedure as to computation of time are adopted for appeals to avoid any problems resulting from a lack of uniformity.
Sub. (2) continues the first sentence of former Rule 251.45. It eliminates the second sentence of that Rule permitting the attorneys by stipulation to extend the time for filing briefs if the extension does not interfere with the assignment of the case because this procedure interferes with the ability of the court to monitor cases pending before it and because it is not always certain when a case will be on an assignment. The Supreme Court considers that deadlines as to briefs and other actions in the court should have priority over all matters except previously scheduled trials in circuit and county courts and deadlines set by a federal court. Requests for extensions are not, consequently, looked upon with favor by the court. [Re Order effective July 1, 1978]
Judicial Council Committee's Note, 1981: Sub. (2) is amended to permit the court of appeals to extend the time for filing a notice of appeal or cross-appeal in appeals under Rules 809.30 and 809.40 (1), which cover criminal appeals and postconviction motions and appeals in ch. 48, 51 and 55 cases. When read with Rules 809.30 and 809.40 (1), the rule was previously ambiguous regarding extensions of time to file a notice of appeal or cross-appeal in ch. 48, 51 and 55 cases. The amendment clarifies the rules. Other than appeals under Rules 809.30 and 809.40 (1), the time for filing a notice of appeal or cross-appeal may not be extended. [Re Order effective Jan. 1, 1982]
Judicial Council Note, 2001: Subsection (2) (d) was created to provide notice to the clerk of any motion affecting time limits. Subsection (2) (e) was created to facilitate computation of due dates on petitions for review. [Re Order No. 00-02 effective July 1, 2001]
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
The authority to extend the time for filing a notice of appeal under sub. (2) 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
A claim of ineffective assistance of appellate counsel must be brought by a petition for writ of habeas corpus. Utilizing sub. (2) as a substitute for habeas corpus, so as to avoid making a substantive determination that a defendant was denied the effective assistance of appellate counsel constitutes an erroneous exercise of discretion. State v. Evans, 2004 WI 84
, 273 Wis. 2d 192
, 682 N.W.2d 784
. See also Santana v. Endicott, 2006 WI App 13
, 288 Wis. 2d 707
, 709 N.W.2d 515
It is unwise and unhelpful to replace the good cause standard for deciding extension motions under this section with an ineffective assistance of counsel analysis under Evans
when deciding requests for extensions of time to file notices of intent to pursue postconviction relief. State v. Quackenbush, 2005 WI App 2
, 278 Wis. 2d 611
, 692 N.W.2d 340
The writ of habeas corpus may be used in the court of appeals to seek relief from a termination of parental rights (TPR) even though there is no restraint of liberty of the petitioner, when appellate counsel failed to appeal before the deadline. Under sub. (2) (b), the time for filing an appeal of a TPR may not be enlarged when the petition was filed by someone other than a representative of the public. If the court was not able to recognize the petitioner's right to raise ineffectiveness of counsel, the petitioner will never have an appeal through no fault of his or her own. Amy W. v. David G., 2013 WI App 83
, 348 Wis. 2d 593
, 834 N.W.2d 432
Rule (Penalties for delay or noncompliance with rules). 809.83(1)(a)
If the court finds that an appeal was taken for the purpose of delay, it may award any of the following:
A penalty in addition to interest not exceeding 10 percent on the amount of the judgment affirmed.
A motion for costs, penalties, damages and fees under this subsection shall be filed no later than the filing of the respondent's brief or, if a cross-appeal is filed, the cross-respondent's brief.
(2) Noncompliance with rules.
Failure of a person to comply with a court order or with a requirement of these rules, other than the timely filing of a notice of appeal or cross-appeal, does not affect the jurisdiction of the court over the appeal but is grounds for dismissal of the appeal, summary reversal, striking of a paper, imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 151 Wis. 2d xvii (1989); 1995 a. 225
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii.
Judicial Council Committee's Note, 1978: Former ss. 251.22, 251.23, 251.51, 251.56, 251.57, 251.73, 251.75, 251.77, 251.81, 251.82, 251.85 and 251.89, providing for specific penalties for delay and for certain rule violations, are replaced. In the event of a rule violation, the court is authorized to take such action as it considers appropriate. If the court finds an appeal was taken for purposes of delay, it can impose one or more of the four types of penalties specified in sub. (1). [Re Order effective July 1, 1978]
Judicial Council Note, 2001: Subsection (2) is changed to allow appellate courts to sanction parties who violate court orders. [Re Order No. 00-02 effective July 1, 2001]
The untimely service of a petition filed under s. 808.10 does not affect jurisdiction, but the opposing party may move to dismiss under sub. (2). State v. Rhone, 94 Wis. 2d 682
, 288 N.W.2d 862
Summary reversal of a dismissal order as a sanction under sub. (2) entitled the plaintiffs to a trial without consideration of the issue that resulted in the dismissal. State ex rel. Blackdeer v. Town of Levis, 176 Wis. 2d 252
, N.W.2d (Ct. App. 1993).
To dismiss an appeal under sub. (2), there must be demonstrated egregious conduct or bad faith on the party's or attorney's part. In certain cases attorney bad faith may be imputed to the party, but the attorney conduct should involve the same litigation. It was improper to consider an attorney's repeated requests for time extensions in other cases in denying a motion and dismissing the appeal. State v. Smythe, 225 Wis. 2d 456
, 592 N.W.2d 628
The court of appeals may not grant summary reversal of a circuit court order on appeal as a sanction without a finding of bad faith, egregious conduct, or a litigant's abandonment of the appeal. Raz v. Brown, 2003 WI 29
, 260 Wis. 2d 614
, 660 N.W.2d 647
Rule (Applicability of rules of civil procedure).
An appeal to the court is governed by the rules of civil procedure as to all matters not covered by these rules unless the circumstances of the appeal or the context of the rule of civil procedure requires a contrary result.
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
Rule (Continuation, appearance, substitution or withdrawal of counsel). 809.85(1)
Appointed counsel to continue.
An attorney appointed by a lower court in a case or proceeding appealed to the court shall continue to act in the same capacity in the court until the court relieves the attorney or as allowed under sub. (3)
, or (5) (b)
Counsel not admitted to practice law in Wisconsin but admitted pro hac vice in the circuit court case shall provide the clerk with a copy of the circuit court's order admitting counsel pro hac vice and then may appear before the court in association with counsel admitted to practice law and in good standing in Wisconsin. Wisconsin counsel shall sign every document filed in the court and shall be present in person in all proceedings unless excused by the court.
Counsel not admitted to practice law in Wisconsin may move the court for pro hac vice admission and shall state by affidavit that counsel is admitted to practice law and is in good standing to practice law in another jurisdiction and that counsel has complied with SCR 10.03
(4). If the motion is granted, counsel may appear before the court in association with counsel admitted to practice law and in good standing in Wisconsin. Wisconsin counsel shall sign every document filed in the court and shall be present in person in all proceedings unless excused by the court.
For good cause the court may revoke the privilege granted herein of any counsel admitted pro hac vice to appear in any proceeding.
Notice of limited appearance.
If an attorney's scope of representation is limited, notices under s. 802.045
of limited appearance and of termination of limited appearance shall be filed with the court and served on the client and all parties. Upon the filing of the notice of termination of limited appearance, the clerk shall enter the withdrawal of counsel on the court docket without a court order.
An attorney for a party to an appeal or other appellate court proceeding may withdraw upon the party's consent by filing a notice of withdrawal signed by the party and withdrawing counsel and accompanied by a notice of substitution of counsel signed by substitute counsel. The notice of substitution of counsel must provide the substitute attorney's name, mailing address, electronic mail address, if any, and telephone number. Upon the filing of a notice of withdrawal and notice of substitution of counsel, the clerk shall enter the substitution on the court docket without a court order.
Substitution of counsel without the signature of withdrawing counsel may be allowed for good cause shown and upon such terms as shall be just.
Entry of appearance by members or employees of law firms, professional corporations, legal assistance clinics, and agencies.
The entry of an appearance as attorney of record by an attorney who is a member or an employee of a law firm, professional corporation, legal assistance clinic, or agency representing a party to the appeal or other appellate court proceeding shall relieve other members or employees of the same law firm, professional corporation, legal assistance clinic, or agency from the necessity of filing a notice of withdrawal and substitution of counsel. Upon entry of such appearance, the clerk shall enter the substitution of counsel on the court docket without a court order unless the entry of appearance indicates that the attorneys will serve as co-counsel.
Withdrawal by consent.
Other than in an appeal under s. 809.107
, an attorney for a party to an appeal or other appellate court proceeding may withdraw as counsel of record upon the party's consent by filing a notice of withdrawal signed by the party indicating consent. The notice shall indicate the party's last known address unless disclosure of the address would violate a standard of professional responsibility. Upon the filing of a notice of withdrawal indicating the party's consent, the clerk shall enter the withdrawal on the court docket without a court order.
Withdrawal by motion.
An attorney desiring to withdraw as counsel of record for a party to an appeal or other appellate court proceeding who is unable to obtain the party's consent under par. (b)
, or in an appeal under s. 809.107
, must file a motion to withdraw. The motion shall be filed in the court in which the appeal or other appellate court proceeding is pending.
Referral for appointment of counsel by the state public defender.
If the appeal or other appellate court proceeding is one in which the client may be eligible for the appointment of counsel under s. 809.107
or 809.30 (2) (e)
or ch. 977
, and if the client requests representation by the state public defender, the attorney shall serve a copy of the motion to withdraw on the appellate division intake unit in the Madison appellate office of the state public defender and refer the client to the appellate division intake office for indigency determination and the possible appointment of counsel. When a client is referred to the state public defender, within 20 days after receipt of a motion to withdraw filed and served under par. (e)
the state public defender shall
notify the court in which the motion was filed of the status of the determination of the client's indigency and whether the state public defender will appoint counsel.
Content of motion to withdraw as counsel.
A motion to withdraw as counsel must include all of the following items:
The client's name and last known address, unless disclosure of the address would violate a standard of professional responsibility.
A statement that at least 14 days before the motion was filed the client was notified in person, by mail, by electronic mail, or by phone of all of the following information:
Of the right to object to the motion within 11 days after service of the motion.
That unless the client retains or obtains new counsel, the client is personally responsible for keeping the court and the other parties informed where notices, briefs, or other papers may be served and complying with all court orders and time limitations established by the rules of appellate procedure or by court order, and that if the client fails or refuses to comply with court orders and established time limitations, the client may suffer possible dismissal, default or other penalty.
The date of any pending deadline or required filing in the appeal or other appellate proceeding.
If the client is not a natural person, that the client must be represented by counsel unless the appeal is taken from a small claims case.
When referral to the state public defender is required under par. (d)
, a statement that the referral was made and the date it was made.
A statement that the motion was served on the client, all parties to the appeal, and the appellate division intake unit in the Madison appellate office of the state public defender when referral to the state public defender is required under par. (d)
If counsel was unable to give the client the notice required under subd. 2.
, a statement that attempts to give notice have failed and an explanation of what good faith efforts counsel made to satisfy the notice requirement.